See 


Sei 


ST 























a tA ES —— 
| = SS 
5 ; 
i} i) \ 
( , 
{ ‘| 
k Ri 
if 
3 = 


\ 
bf) 


















































Digitized by the Internet Archive 
in 2008 with funding from 
Microsoft Corporation 


http://www.archive.org/details/addresseshistori00coudrich 








Addresses 


Historical—Political—Sociological 


By 


Frederic R. Coudert 


G. P. Putnam’s Sons 
New York and London 
The Rnickerbocker Press 


1905 


COPYRIGHT, 1905 


BY 


G. P. PUTNAM’S SONS 


The Rnickerbocker Press, Hew Work 





CONTENTS 


ARBITRATION AND INTERNATIONAL Law: 
I.—International Arbitration. An Address 
before the Union League Club at Chi- 
cago, Washington’s Birthday, 1897 
II.—The Anglo-American Arbitration Treaty, 
From the Forum, March, 1897 
III.—The Rights of Ships. An Address beter 
the Naval War College, Newport, Octo- 
ber-2,, £895) t : : , 
IV.—International Law. An Address before 
the University of Pennsylvania, June 
7, 1897 
History AND BroGRAPHY: 
V.—Christopher Columbus. An Address be- 
fore the U. S. Catholic Historical So- 
ciety at may Hall, October 11, 
1892 
VI.—Louis Rocseh, Addvess a ae ion 
April 4, 1894, at the Kossuth Memorial 
Celebration . : : : ; 
VII.—Andrew Jackson. An Address before 
the New York County Democracy, 
January 9, 1888 
VIII.—Charles O’Conor. A Memorial Read betore 
the New York Bar Association, Janu- 
ary, 1885 : , : ‘ 
IX.—Montesquieu. An introduction to a 
Translation of the Esprit des Lois, 1899, 


iii 


Mazo re? 


PAGE 


45 


60 


105 


nie 


186 


210 


iv Contents 


X.—Chief-Justice Waite. Memorial Address 
at the Meeting of the Bar, New York, 

March 31, 1888 ; . 
XI.—France. Address in Reply to the Toast, 
“The President of the French Repub- 
lic,’’ at Dinner to Whitelaw Reid, April 
16, 1892 : é : A ; 
XII.—France. Address to the French Delegates 
on Presentation of Statue of ‘ Liberty 
Enlightening the World,” June, 1885 . 


MORALS AND SOCIAL PROBLEMS: 
XIII.—Reply to Dumas’s Advocacy of Divorce, 
March 15, 1880 ‘ : 2 : 
XIV.—Morals and Manners. An Address before 
the Catholic Union, 1873. 5 4 
XV.—Lying as a Fine Art. An Address before 
the Catholic Union, 1873 . : : 
XVI.—The Church and the Bar. An Address 
before the Catholic Union, 1873. ‘ 
XVII.—Attorney and Client. An Address before 
the Catholic Union, 1873 : 
THE Bar: 
XVIII.—The Bar of New York from 1792 to 1892, 
XIX.—The Lawyer’s Responsibilities—Law Re- 
form—Codification. An Address be- 
fore the Catholic Union, 1873 


SOCIAL ORGANIZATION: 
XX.—Young Men in Politics. Reprinted from 
the New York Times, February, 1890 
XXI.—Columbia College—Centennial Address, 
April 13, 1887 ! . 





PAGE 


226 


230 


238 


399 


415 


423 





INTRODUCTORY NOTE 


comprise but the recoverable fragments of the 

record of a life singularly broad and useful. 
Taken up mainly with the work of a profession which 
vouchsafes little leisure, the life of a lawyer rarely 
leaves any surviving residuum other than the latent 
influence born of every effort to make good the reign 
of law, order, and justice. However broad his sym- 
pathies, however alive his realization of the manifold 
fields in which there is good work to be done, it is rare 
for the lawyer who does not virtually abandon his 
profession, to leave any other record of his usefulness 
than the evanescent memory of an advocate’s labors, 
—‘‘brief as lightning in the collied night.’ 

Mr. Coudert’s intellectual activity and the wide 
reach of his sympathies were such that neither the 
science of the law nor the active exercise of its profes- 
sion, deeply as they engrossed his attention, could 
suffice to absorb the individual or to monopolize his 
heart and brain. From his college days to the last 
hours of his life, his spirit moved, “without haste, 
without rest”’ through the orbit of all human interests, 
throwing out its illuminating sparks and diffusing its 
cordial warmth upon every endeavor and aspiration 
within its ken. 

Frederic René Coudert was born in the city of New 


v 


ah: addresses and articles here brought together 


vi Introductory Note 


York on the 1st of March, 1832, and continued a resi- 
dent of the city and identified with its interests until 
his death. He received his early education in the 
school established by his father, Charles Coudert, an 
officer of the Imperial Guard, who found it necessary 
to exile himself from his native country owing to po- 
litical prosecutions after the Restoration. This train- 
ing, under his father’s able and watchful supervision, 
was such that at the early age of fourteen he was 
ready for entrance to Columbia College, from which he 
graduated in 1850 at the age of eighteen. Many 
years later, in a public discussion, he had occasion to 
say that there were a few things upon which he was 
sensitive: the one was the land of his fathers; and the 
other, the bark of Peter. Evidence of his devotion to 
these was never wanting. It began during his college 
career: When one of the professors, on the occasion of 
the Revolution of 1848, indulged in harsh strictures 
with reference to French achievements, the young 
scholar, whose knowledge of history was already sound 
and broad, was stung into a retort, which was cut short 
by an admonition that no discussion of “ politics’’ was 
allowable. It was shown again by the selection and 
treatment of the subject for his graduation oration— 
a review of the ‘‘Isms”’ of the day. 

While he pursued his studies at Columbia, he gave 
lessons to a large class of boys in Spanish and in 
French, and at times even his evenings were given to 
the tuition of adults. 

On leaving college, he took up the study of law in 
the office of Edward Curtis, at that time one of the 
leaders of the New York Bar, a prominent Whig, the 
friend and intimate of Webster, and at one time a 
member of Congress and Collector of the Port. 


Introductory Note vii 


While pursuing his law studies, the young man wrote 
and translated for the daily and weekly press. At that 
time the leading sporting journal was Porter’s Spirit of 
the Times, under the editorship of that ripe scholar and 
genial gentleman William T. Porter. This publica- 
tion united literary skill, polish, wit, and urbanity 
with its records and discussions of sport, and it was 
mainly to its columns that the contributions of the 
young law student found their way. 

Always a great reader and a close student, his prep- 
aration for the Bar was thorough; immediately upon 
his admission, he entered upon the practice of the law, 
and from the modest beginnings with which every 
earnest member of the profession is content, his success, 
his influence, and his reputation grew steadily and con- 
tinuously until his pen and his voice were stilled and 
his mission ended. 

At no time did he confine his study and research, 
nor his active labors and co-operation, to purely pro- 
fessional subjects. His clear discernment early taught 
him that the greatest masters of their professions are 
those who, not content with its technical training, find 
in every field of knowledge and in all channels of life 
experience and acquirements to strengthen and to 
elevate the vocation which, without such aids, tends 
to narrow its influence and lose its power. To this 
intellectual appreciation was added the moral convic- 
tion that no man’s obligations to his fellows are dis- 
charged by even the most assiduous devotion to the 
exigencies of his profession, and that duty has many 
other calls upon him. 

Very early in his professional career, he lectured in 
aid of struggling churches, choosing such congenial 
subjects as Edmund Burke, with whose great concep- 


viii Introductory Note 


tions of governmental duties and responsibilities he 
was always in unison; John Philpot Curran, and others 
of that galaxy of the Irish Bar who united mastery of 
their professions with passionate devotion to their 
country, and who irradiated their toilsome pathways 
with unfailing humor and abundant wit. 

Under the auspices and in aid of the work of the 
Catholic Union, Mr. Coudert delivered the series of 
lectures which, under the titles of ‘‘Morals and Man- 
ners,” ‘‘Lying as a Fine Art,” and ‘The Church and 
the Bar,’ helped to dispel many popular misappre- 
hensions. 

The wide sympathies of the man and the correspond- 
ing activity, to which I have alluded, brought their 
burden and their reward. Opportunities are never 
wanting to the man who is ready for them. The St. 
Vincent de Paul Orphan Asylum benefited by his 
counsel for years; during ten years, he presided over 
the work of the French Benevolent Society, quieted 
dissensions, extinguished enmities, and welded into a 
potent and beneficent instrument that worthy institu- 
tion; for years he was President of the Alumni Asso- 
ciation of Columbia, as well as a Trustee of that in- 
stitution, and brought to its development inspiring 
influences born of his great love for his Alma Mater, 
infused into their annual reunions an earnestness and 
at the same time a sprightliness, a brilliancy, which 
became a tradition that has outlived his term. 

He was one of the early Presidents of the U. S. 
Catholic Historical Society, in whose work he took 
part with the same earnestness that characterized 
whatever service he undertook. 

As to politics, he held it to be ‘‘the duty of every 
good citizen to become, at some time or other, and to 


Introductory Note ix 


some extent, an active factor in the working of the 
governmental machinery,” but this he also held might 
be “‘ more effectually done by those who ask no reward 
from the powers that be, and no salary from the public 
treasury for being outspoken and brave.” He early 
held the presidency of the “‘ Young Men’s Democratic 
Club,”’ since known simply as the “‘ Democratic Club’”’; 
for many years he was President of the Manhattan 
Club; no political campaign passed without some con- 
tribution from him, in speeches, or letters, or pamph- 
lets, or quiet conferences. In 1876, he was one of the 
committee of citizens who visited New Orleans in the 
hopeless endeavor to bring the influence of public 
opinion to bear upon the “ Returning Board,’’ whose 
fairness or unfairness was to decide the presidential 
election of that year. In 1892, he led the revolt in his 
own party, which defeated the attempt to set aside 
the name of Cleveland as New York’s choice for the 
Presidency, and in 1893 he performed a similar office 
of successful protest against the elevation of Judge 
Maynard to the Court of Appeals. He was always an 
enlightened and consistent Democrat in national poli- 
tics, and was insistent upon what he called “decent 
political methods and the subordination of personal 
interest to the public good.’’ He always declined 
public office, even on the United States Supreme 
Bench, with one notable exception—the inconspicuous 
post of member of the Board of Education of the City 
of New York, an unsalaried office, in which he labored 
with unusual zeal. 

The Presidency of the Bar Association; his appoint- 
ment as delegate to Antwerp, in 1878, to aid in the 
Revision of the Rules of General Average, and as dele- 
gate to the International Conference at Berne, in 1880, 


x Introductory Note 


to consider the Codification of the Laws of Nations; 
his lectures on International Law before the Naval 
War College and the University of Pennsylvania, and 
the lectures delivered on International Arbitration 
before the Union League Club, at Chicago, are instances 
of labor freely undertaken in discharge of the duty 
which he conceived to be the proper response to the 
call of public spirit. 

To these may be added his witty and spirited reply 
to the younger Dumas’s plea on behalf of a divorce law 
in France. The law proposed by Deputy Naquet 
would have permitted divorce upon the bare disagree- 
ment of the married couple. This was an assault upon 
his dearest convictions, and the reply was a defence of 
his belief. 

For throughout his life he was a man of faith; in 
1887, he was selected by Columbia College, his Alma 
Mater, as the orator on the occasion of her Centennial 
celebration, and in his address gave the warning that 


the great complaint of thinking men to-day is, that the 
rising generation, into whose hands the direction of public 
affairs must soon fall, has lost or is losing its faith. 

If men have really lost the faith which cemented modern 
society, or if they are in danger of losing it, then is the 
world face to face with a new peril. 


A year later, summing up in the North American 
Review the controversy between Colonel Ingersoll and 
Dr. Field, in which Mr. Gladstone was led to take part, 
he deprecated the discussion, which must of necessity 
be fruitless, as the adversaries did not start from any 
common postulate, and added this public profession 
of his faith: 


Introductory Note xi 


Human reason looks on helpless and silent, when it con- 
templates the Infinite, the Eternal, the Unknown; the 
Divine scheme may, by the aid of Faith and Reason com- 
bined, be made clear to the minds of men, but the initial 
obstacle in Mr. Gladstone’s way consists in this very 
requirement that Faith should play a part, and an im- 
portant one, in the demonstration of revealed truth. 
This proposition his adversary openly derides. 

What, then, is Faith, and what part does it play in the 
discussion or acceptance of Divine Truth? The sacred 
volume tells us in no uncertain words that Faith is the 
credence of things unseen; that we must accept these 
things as little children; that they are happy who have 
not asked to see, but have believed. 


Laborious student as he was, stored with the history 
of the past, he was eminently a man of his day; the 
glories that had gone did not obscure his vivid realiza- 
tion of the achievements of to-day, nor of the splendid 
opportunities of to-morrow. 

He was full of appreciation for the good that sur- 
rounds us; he looked for it, he found it, and he aided it. 

Free from self-seeking as he was, calls came to him 
from eminent sources; from an administration adverse 
to him in politics came the invitation to take part, on 
behalf of the United States, in the famous controversy 
as to the respective American and British rights of seal 
fishing in the Behring Sea; and from another adminis- 
tration, the call to take part in fixing the boundary 
between Venezuela and British Guiana, at a time when, 
upon the recognition of that boundary, depended the 
momentous question of peace or war between Great 
Britain and the United States. 

His professional career was varied in the extreme,— 
it embraced the criminal bar, admiralty cases, and 


xii Introductory Note 


patent causes of note, commercial law, and interna- 
tional law. His professional characteristics may best 
be summed up by borrowing a page from the Memorial 
read before the Association of the Bar of the City of 
New York, by Mr. Justice Patterson of the Supreme 
Court. 


From his earliest appearance at the Bar, he disclosed the 
power of the skilled advocate, and his main relation to the 
profession during all the years of his activity was that of 
an advocate, and, as such, he took rank with those who 
have attained the highest distinction. He had the gift of 
knowing how to present a case. He could state it with 
a clearness and an exactness that carried conviction on 
the simple statement, thereby illustrating the remark of 
Judge William Fullerton (himself a great trial lawyer), 
that a case is won, not so much by labored and elaborate 
argument and eloquence, as by the clearness with which it 
is put by counsel before the Court or jury. Mr. Coudert 
was employed in many commercial cases, but his greatest 
achievements were in the direction of international law. 
As an international lawyer, his position was pre-eminent. 

He did not wish for honors outside of the profession of 
the law, to which he was devotedly attached. He declined 
the mission to Russia. He also declined an appointment 
to the Court of Appeals of New York, and to the Bench of 
the Supreme Court of the United States. To state his 
professional status in a few words: He was a sound and 
learned lawyer; but as an advocate he ranked in the 
highest class. It is not from the greater profundity of his 
learning, nor from the possession of talents which did not 
pertain to other leaders that he is to be distinguished, but 
there was something unique in everything he did or said 
that made him a man apart from his peers. There was 
that in his manner, in the quickness of his perception, 
in those subtle things which make a deep impression, but 
never can be accurately defined or described, which, in a 


Introductory Note xiii 


sense, separated him from the other great advocates of his 
day. There was a wit peculiarly his own, a rapidity of 
retort, a promptitude to meet every adverse thing presented 
to him, which no other man possessed; and, added to all, 
there was a sincerity and truthfulness which never failed 
to affect either a Court or jury to which he addressed him- 
self. Perhaps there was no man at the Bar whose personal 
characteristics counted for as much as his. In the trial of 
a cause, he could excite sympathy or evoke ridicule, or 
make one of those rapid transitions from seriousness to 
gayety that are so effective. His power of sarcasm was 
withering, but it took strong provocation to call it forth. 
It was not merely the accident of a situation which in- 
spired him, but his control of it that enabled him to display 
the highest art of advocacy. There were others equal to 
him in the exhibition of that art, but his method differed 
from theirs; he created the atmosphere of his case. It 
must not be inferred from his prominence as an advocate, 
that he was lacking in what constitutes the real lawyer. 
He was thoroughly learned and had a sound understanding 
of the principles of law, but, to repeat, that which was his 
dominant characteristic was his great and peculiar skill 
in advocacy. Nevertheless he was an eminently practical 
business man, capable of conducting great affairs, as was 
shown by his successful administration, in conjunction 
with Mr. Charles Francis Adams and Mr. E. Ellery Ander- 
son, as Government Receiver of the Union Pacific Railway. 

He was employed in some of the most important civil 
and criminal cases that came before the courts. In his 
early years, he, as many other lawyers then did, undertook 
to practise in the criminal courts. He was counsel for 
Dr. Gaillardet, the proprietor of the Courrier des Etats 
Unis, in the sensational case of the assault on Mr. Cranston 
of the New York Hotel—a case which brings to the memory 
of many the litigation in France between Gaillardet and 
the elder Dumas, concerning the authorship of the Tour de 
Nesle. During the Civil War, he was associated with Mr. 


xiv Introductory Note 


Reverdy Johnson of Baltimore (one of the foremost 
lawyers of our time) in the Blockading Cases; and while 
he was still a young man, he was with Mr. O’Conor, the 
acknowledged leader of our bar, in the case of Lahens vs. 
Fielding, which involved a very important question of 
commercial law. He was familiar with the laws of Euro- 
pean countries, and that, as before suggested, brought him 
into contact with foreign consulates and embassies. He 
prosecuted many extradition cases, and did more than any 
other man to settle the law relating to the construction of 
treaties with foreign powers affecting such cases. He was 
also very successful in patent and trade-mark litigations, 
and in actions arising under the Constitution and laws of 
the United States. He was with Mr. James C. Carter and 
Mr. Edward J. Phelps, of counsel for the United States in 
the Behring Sea Arbitration, and was called into it only 
two months before he was required to sail for Paris, where 
the International Court was held. Mr. Foster, then 
Secretary of State of the United States, objected to his 
being retained, declaring that it was impossible for any 
man at such a late day to familiarize himself with the great 
mass of testimony which it was necessary to understand 
in detail; but afterwards he said: ‘‘In less than six weeks 
after Mr. Coudert’s retainer, I had occasion to go over the 
matter with him, and I have not yet recovered from my 
amazement at the thorough mastery of that complicated 
case which he had been able to acquire in that incredibly 
short time.’ Mr. Coudert was also engaged as a repre- 
sentative of the United States in the Venezuela Boundary 
controversy. That was the last case of public interest to 
which he devoted his time; and to that he gave labor, the 
intensity of which only those who were with him can con- 
ceive. . There were many other important cases in which 
he was engaged, such as the Bonnard Will, which involved 
the legality of a bequest to the Society for the Prevention 
of Cruelty to Animals; and the Catholic Protectory case, 
involving the right of the Society for the Prevention of 


Introductory Note Xv 


Cruelty to Children to exercise the power to arrest and 
commit children to reformatory institutions. 


A few words as to the personal characteristics which 
were peculiarly his own. 

Most men exhibit but one phase of character to 
those who meet them in only one relation of life. The 
merchant is one thing to his customers, the lawyer one 
thing to his clients or his opponents, but most show 
quite another character in their social relations. Any 
one who met Mr. Coudert in his office, or in the court- 
room, at the club, in political consultation, or in the 
tranquil leisure of his home, recognized the same 
character, the same man. He was one—complete— 
entire. His relations with his fellow-men—his conduct, 
in a word, was based upon elements which could not 
vary, so that to all, wherever he met them, he pre- 
sented the same openness to receive impressions from 
his interlocutor, the same unvarying readiness to hear, 
to know, to serve, the same quick sympathy which 
showed an instant comprehension of his hearer’s atti- 
tude, whether or not he shared it. 

Of course the more intimate the intercourse, the 
further did one penetrate into this mind, open as it 
was, and the more could one draw from its riches; but 
to all the mine was ever open. 

Gifted with almost intuitive insight, he discovered 
the weakness of an adversary’s case, or of a false state- 
ment, with lightning quickness, and this natural gift 
he supplemented by a subtlety of analysis which tested 
and confirmed his estimate; possessing a gift of humor 
which instantly revealed to him whatever was grotesque 
or amusing in a situation, he relieved the dullest tasks 
by constant flashes of merriment, or in turn flayed 
with the lash of his wit, or burned with the flame of his 


Xvi Introductory Note 


sarcasm, the shams and pretences that stood in the 
way of justice. In keen raillery he was a master, yet 
his innate gentleness prompted him rather to a kindly 
humor, so that the deft hand made no deeper incision 
than was requisite, and seldom left any venom in the 
wound. 

Remarkably open to the influences of emotion, he 
was ever on the watch to prevent its too exuberant 
manifestation, taking refuge from pathos by unex- 
pected transitions to humor. Yet in the notable Cen- 
tennial address, at Columbia, he told his grave auditors 
that 


no man need blush because his heart beats high and his 
speech grows warm for his country, his home, or his faith, 
nor because a tender chord binds him to the mother that 
made him what he is. True sentiment is not weakness; 
it is strength. It makes fragrant the commonplaces of 
life; it throws a purple mantle over the humblest occu- 
pation, and keeps alive the sacred fires in the temple of 
pure and genuine manhood. 


Throughout the many conflicts which are the lot of 
his profession, and those in which the contests for pure 
politics and honest government involved him, untiring 
and merciless as were his assaults upon the wrongs he 
sought to right, he was hampered by an invincible re- 
luctance to hurt the individual, and even when his 
indignation was directed against a particular wrong- 
doer, it seldom long survived the occasion of the attack. 
To speak of his integrity of motive in every action of 
his long career, would be an offence to a conscience that 
never knew what hesitation was between the straight 
and the crooked path—indeed, never seemed to see 
any but one path. 


Introductory Note XVii 


His was indeed a blithesome spirit, ever hovering a 
little above the dulness of our common traffic; a 
kindly heart, ever a little aloof from the bitterness of 
daily strife, viewing the failings of his fellows through 
the softening haze of an enduring sympathy. 

The estimate of him given by Mr. Justice Patterson, 
in the Memorial already quoted from, is so discriminat- 
ing and so true that it may not inappropriately close 
this sketch: 


Apart from his attainments as a lawyer, Mr. Coudert 
was a ripe scholar. He delighted in literature, and much 
of his life was spent in the book companionship of the great 
authors of ancient and modern times. He had a vast 
knowledge of general literature. He was master of several 
languages. In addition to English literature, he was as 
familiar with that of France and Spain and Germany and 
Italy, as is a cultured native of any of those countries. 
His oratorical power was not only evinced in his career at 
the Bar, but he could make an address in French quite as 
easily and as readily as in English. What has been re- 
ferred to as his supreme gift in forensic oratory is not 
meant to be exclusive; he displayed the same gift on other 
occasions than the trial and argument of causes. He 
delivered many addresses, wise, instructive, and eloquent, 
at educational institutions and other places. Many of us 
know that on occasions of festivity there were few who 
approached him in the happiness of his impromptu speeches, 
none who equalled him in originality, or surpassed him in 
the grace and exquisite finish of his style. But that which 
will make him memorable to his friends is the beauty of 
his personal character. He was the most unselfish of men. 
He was prompt at all times not only to respond to a call 
of charity, but to anticipate what could in kindness be 
done for others. He gave liberally of his substance to 
every good cause, making no distinction between indi- 


XViii Introductory Note 


viduals or opinions. In political life, he represented the 
highest type of the independent citizen whose one purpose 
is to do his whole duty as a citizen and who seeks with dis- 
cretion and good judgment, and not impulsively or hysteri- 
cally, to inspire others with the same motive. In society, 
his wit, his courtesy, and his personal influence, acquired 
without obtrusiveness and without self-assertion, made 
him a notable figure. 

In his later life, afflicted as he was for several years with 
a mortal disease, he exhibited a strength of will, resigna- 
tion, cheerfulness, and patience almost beyond conception. 
Those of us who knew him well and loved him much, while 
we pay the highest tribute to his abilities, to his intellectual 
power, and to his attainments as an eminent lawyer, will 
remember him for the possession of those higher moral 
qualities which, after all, are the greatest endowments 
and adornments of humanity. 

It is not an exaggeration to say that Mr. Coudert was 
complete in every element of manhood. In and of the 
world, he never failed in his duty. But interested as he 
was in temporal affairs and although an earnest and eager 
observer of the great events of our history-making epoch, 
he was profoundly religious and his life was regulated by 
the conviction of a personal responsibility hereafter. In 
these days of rampant materialism, there is not often to 
be found a character so pure or a faith so simple and strong 
as his. To his apprehension, the future life was quite as 
much a reality as the present; and that belief was a con- 
solation and a joy, in a long twilight which to him was that 
which preceded the rising and not the setting of the sun. 


Poe 


NEw York, July, 1905. 


ARBITRATION AND INTERNATIONAL LAW 


a 








INTERNATIONAL ARBITRATION ! 


\ X JE are gathered here to-day in honor of the 
founder of our nation, or as we prefer in 

filial reverence to call him—the father of 

our country. His fame is his own, his eminence 
unique. Our jealous love for him will allow no other 
statue a place on the same pedestal; none other shall 
stand as a rival in his claim to our devotion. For his 
light shone in the dark days as the only star that 
meant hope, his steadfastness kept the tottering young 
nation from despair, his genius and serenity, his faith 
and his courage, inspired and strengthened those who 
were fighting the great fight. But for him and his 
inspiration, who will venture to say that the freemen of 
to-day would not be the defeated rebels of the past; 
who will study the fearful pressure of ever-increasing 
perils and dispute his claim to our gratitude so long 
as we remain one people? Overwhelming odds tested 
his genius, treason wrung his heart, jealousies and 
rivalries baffled his plans, but the serenity of his soul 
was undisturbed. As though a ray of divine inspira- 
tion had touched his spirit, he looked beyond the trials, 
1 The substance of an address before the Union League Club of 


Chicago on Washington’s birthday, 1897, re-edited with additions 
from an article in Harper’s Magazine, November, 1893. 


3 


4 International Arbitration 


perplexities, and cares of each day and saw the vision 
which others were blind to enjoy. He could remain 
firm without the encouragement of victory, he could 
accept defeat without despondency, he made stepping- 
stones of disaster, and amazed the world by his forti- 
tude. Benedict Arnold might wound his heart, but 
even that cruel wound could not open the way to 
despair. His half-clad and half-fed troops might 
leave the track of bloody feet in the snows of New 
Jersey, but the radiant vision never melted from his 
sight. His powerful enemies might send veteran 
troops in huge bodies to crush the straggling rebels, 
but his faith never faltered. The day would surely 
come when the dreams would become reality, and after 
great tribulation and trial and suffering a new child 
would be born into the family of nations—a child 
destined to become a giant, strong enough to fear no 
enemy but itself. 

We have indeed many great names in our national 
gallery besides that of Washington. Many men, dur- 
ing the short history of a century, have carved their 
names in deep letters on the world’s story. From the 
earliest day we have had statesmen who built wisely 
and well for the country’s good: from Adams and 
Jefferson to the men now living and now striving to 
carry on the work of the fathers we have had leaders 
eminent in peace. But yet the universal voice still 
clamors with the swift instinct of discerning gratitude, 
“He was first in peace.” 

The records of our army blaze with glorious tradi- 
tions. Scott, of Lundy’s Lane and Mexico; Grant, 
of Vicksburg and the Wilderness; Hancock, the 
Superb; Sherman, Sheridan, McClellan, Thomas, a 
very host of giants have won immortal fame on hard- 


International Arbitration 5 


fought fields; but yet the people still proclaim him 
“the first in war.’’ Patriots pure and unselfish, ora- 
tors eloquent and earnest, judges whose patient re- 
search and learning have helped to build our young 
republic on a solid foundation of law, these have not 
worked in vain and will live in the memory of genera- 
tions to come, but yet the pulse of the nation beats 
with accelerated life when he is mentioned, for he 
still stands “first in the hearts of his countrymen.” 
No wonder, then, that sixty million people are willing 
that the restless activities of their daily lives should 
stop for a day in order that they may wrap themselves 
up in his memory as in a garment and still look to him 
for wise counsel. Those who have lived as Washing- 
ton lived, yield but a part of themselves to the grave. 
The example, the inspiration, the patriotic endurance 
and unselfishness, all these are beyond the reach of 
rust and decay. They teach their lesson even when 
the centuries have gone, and need no voice to per- 
petuate their benefactions. 

What shall we do this day, to prove the sincerity 
of our professions? How best can we honor him? 
Truly the better way would be to look for something 
wherewith to serve our country, to bring some earnest 
thought to the great problems which it is our function 
to solve. To carry fragrant flowers to the tomb of the 
illustrious dead is indeed a graceful tribute of affection, 
to pronounce eulogies in their honor is decorous and 
just; but on each coming day that recalls the birth 
of Washington to consecrate ourselves anew to the 
service of our country is surely the noblest way to 
do him honor. For then we but follow the example 
of one who pledged life and fortune and sacred honor 
to the cause of the people, and we may confidently 


6 International Arbitration 


believe that were his cold lips allowed to move in 
admonition to the people who love him he would bid 
them intermit empty pageants and funereal ostenta- 
tion that they might look to the future and the 
future’s dawn, and seek to make it brighter. If 
those wise lips could move, do we not know from the 
teachings of his life that he would warn our people 
against anger and revenge, that he would teach them 
the horrors of war and the beauties of peace? Would 
we not be taught in solemn accents that a great 
nation may be patient without shame and may with 
honor forbear to strike? He was first in war and 
knew its horrors: he was first in peace and knew its 
beauty. Can we doubt that his blessing would have 
been, with the Divine benediction, on the peace- 
makers; can we doubt that the lovers of war would 
have been thrust aside as enemies of his people? He 
could tell us that in war the burden of the day and 
the heat are the people’s lot and hard to bear; that 
the joyousness of peace is the people’s opportunity 
and the laborer’s inheritance. Where would he 
stand, think you, if the key of the Temple of Janus 
were in his hand, and if he could, by a turn of that 
key, shut off War’s frowning face and silence War’s 
harsh voice? 

We may, then, on this day, so especially his own, 
raise our voice in favor of peace, the handmaid of art, 
the friend of science, the mother of industry, and the 
promoter of all good; we may recall to our own 
minds the claims that she has to our duty, while the 
true nature of war, in dark and deadly contrast, 
shorn of its meretricious charm, stands out as the 
old-time and persistent enemy of the human race. 

From the early day when the first man born of 


International Arbitration 7 


woman slew his brother, war has been the chief oc- 
cupation of mankind. No condition of the human 
race has been so debased that the successful warrior 
has not been the chief among his fellows; no condition 
has been so exalted that the successful warrior has 
not stood above his brethren. He has always received 
the homage of his tribe, his clan, or his country, and 
been honored in direct proportion to the human lives 
that he has taken. The patient student whose mid- 
night labors have enriched the world, the inspired 
artist whose works undying and never old delight 
generations of men, the poet who imprisons in his 
verse the beauties of nature and gives a voice to the 
aspirations of the human race, all these may earn the 
admiration of mankind, but. the military hero has 
always been the favored object of universal praise. 
Whether his name be Alexander or Cesar, Hannibal 
or Napoleon, Frederic or Charles, he is the easy winner 
in the competition for fame. Homer himself, the 
blind bard and master in all the ages, still lives be- 
cause he was divinely skilled in telling how a Greek 
hero smote a Trojan warrior to death by hurling at 
his devoted head a stone which four men of more 
recent and degenerate times could scarcely lift. Virgil 
lives because his warrior showed his manhood by 
seizing another man’s land and killing the owner with 
cruel sword aggravated by eloquent speech. Milton 
himself might have knocked at the gate of the temple 
of fame in vain if he had not in sublime music sung 
of the battle between the Spirits of Light and the 
Angels of Darkness. Ordinary avocations have al- 
ways seemed tame and unprofitable when placed by 
the side of the gorgeously apparelled and superbly 
mounted hero. He appeals to the imagination and 


8 International Arbitration 


draws the applause of men and women alike: for the 
women themselves with their boy baby in their arms 
rejoice with glittering eyes as they look upon the 
hero and his horse; they wonder in their gentle hearts 
whether their own chubby idol may not grow up to 
kill so many of his brethren that he will live forever 
in history. What wonder if he, when of full size, may 
be moved, on slight temptation, to enter the lists, and 
to strive, at his life’s peril, for the great rewards that 
accompany wholesale and patriotic homicide? 

Small wonder, then, that the war superstition 
should have endured so long, that it should have been 
so general, that it should have been like the Christian 
Church, semper, ubique, omnibus. 

Nor can we wonder that man should have been 
prone to war, when we consider his nature and his 
necessities. Like most other animals of creation he 
is a fighting animal. Whether with his nails and 
fists or with a club, whether with a stone hatchet or 
an iron javelin, whether with sword or repeating rifle, 
he has always been ready and anxious to fight and to 
kill something or some one. In the evolution from 
his humble beginnings, man has retained part of his 
inferior attributes. At times he is a model of strength 
and courage, then we dub him the lion-hearted; or he 
is greedy and timid, and with Homer we scorn him as 
a creature with the eyes of a dog and the heart of a 
doe; or he is crafty and unscrupulous in his dealings, 
and we style him a fox. Such are the varieties of his 
nature that we can always find a prototype for him 
in the catalogue of beasts. The inferiority of his 
origin still clings to him, and leaves the atavistic taint 
thus plainly perceptible. He will only acquire new 
and higher standards of comparison when unlike the 


International Arbitration 9 


lion his brother, and the dog his cousin, and the fox 
his poor relation, he has raised himself to greater 
heights. When, being a giant witha giant’s strength, 
he forbears, because it is tyrannous, to use it, when 
passion stands back in respectful obedience to take 
the commands of justice, when reason speaks first 
and last and is strong enough to stifle the voice of 
anger and foolish resentment—when this new era of 
development has taken the place of the old dispensa- 
tion, then may we look for new standards of com- 
parison; the ancient ones will no longer fit the situation. 

Nor is the transmitted tendency alone to blame. 
Necessity, born of the primeval curse, suffered no in- 
termission in the work of violence. So long as food 
was scarce, and could be had only by strenuous ex- 
ertion, and the struggle for life really meant a hand- 
to-hand contest with man and beast, so long was it 
certain that peace could only be bought with sub- 
mission, and must wear the badge of servitude. The 
serf or slave must do the bidding of his lord as the 
price of protection from outside persecutors: the man 
on horseback did the fighting as his part of the con- 
tract. And as he exposed his life with generous 
courage he became the gentleman, partly because he 
wielded a sword and still more because he wielded no 
useful implement. To drive a furrow was the occu- 
pation of an inferior, to gladden the face of the earth 
with a harvest unworthy any but a vassal. Labor 
meant degradation; it fell only to the lot of those 
who were born to be the hewers of wood and the 
drawers of water. Even after Christianity had shed 
her light upon the dark spots of the world, the many 
must work for the few; and the few, because they did 
not work, were credited with a finer clay than that 


10 International Arbitration 


which made up the producer. But gradually, through 
the slow evolution of ages, the intelligence of the 
world was quickened and it was found easier to raise 
one’s own bread than to wrest the bread of another 
by force of arms. The fashion copied from the locust 
swarms, of invading the neighboring territory and 
devouring its fruits being mutual, became incon- 
venient. To own and to keep a field was found to be 
as profitable as to roll along in caravans eating up 
vast territories that became deserts because they 
would not bloom without labor—and Labor is the 
twin brother of Security. The gentle example of the 
early monks was not without its weight. They laid 
the blessing of industrious hands upon the wilderness 
and the wilderness fled before them, making way for 
gardens that gladdened the eye and filled the mouths 
of the hungry. Wars kept on, sometimes for the 
pleasure of kings, sometimes because they could not 
be avoided, but in time fighting became a trade, and 
the soldier became a professional. The mass of the 
nation was allowed to do its work—harried, it is true, 
persecuted, despoiled, outraged, and ruined, some- 
times by one side, sometimes by the other, oftener by 
both; but on the whole labor had some opportunity 
to carry out its mission of civilization, and the laborer 
began to have a value. 

Herein lies one of the first objections to the claims 
of war. Killing has become much more expensive 
than in the old days when the serfs and villeins and 
canaille counted for so little. They have placed a 
higher value on themselves and the powers must, 
willingly or the reverse, accept their own valuation. 
A well-known historian, with accustomed exaggeration, 
gravely tells his readers that a nobleman of France in 


International Arbitration II 


the ante-Revolution days could not bathe his hands 
in the blood of more than one peasant on his return 
from the chase,—a ghastly bit of pleasantry which need 
not be taken seriously. There is nothing in the his- 
tory of the French nobility to show that their tastes 
ran in that direction. But allowing for such ex- 
travagances of statement, it is certain that the peas- 
ant’s life was not then of any appreciable value, 
financially, to any but himself and his family. To 
him and them it meant much more than to the lord, 
who had so many multiplying about him, after the 
fashion of the poor, that occasional and trifling re- 
ductions were of no great moment. Jacques Bon- 
homme, whether on French or German or English 
soil, discovered in time how valuable he was, and the 
consciousness has grown, and what is better still the 
great have found it out in their turn. It is not of 
course easy to place a value on human life. Esti- 
mates differ according to the subject, the locality, 
the value of money. We do know, however, that a 
strong man, with a stout heart and willing hands, is 
part of the moral and material wealth of the land; 
we know that to crush out that life with all its actual 
and potential good is a crime that cries out with the 
blood that mounts in vapor to the skies, bringing 
down by its mute but eloquent protest a benediction 
on all who will strive and pray and work to make 
such crimes rarer and rarer every day that the sun 
rises. 

In no respect is the evolution of our society more 
remarkable and more evident than in this one par- 
ticular, viz., the ever-growing value attached to 
human life. The swelling buds of the fig-tree do not 
announce the approach of summer more accurately 


12 International Arbitration 


than the increased estimate attached to every in- 
dividual existence testifies to our advancing civiliza- 
tion. No better or higher test can be found of a 
nation’s moral status than this. In China the instinct 
of self-preservation is weak: there is so little in life 
worth preserving that the burden is laid down, under 
a trifling temptation, as a galling encumbrance. The 
years that followed the Norman Conquest in England 
present a dark picture of a society in which life for 
the lower classes, at least, was not worth living. The 
English wars in France present the same spectacle. 
Legislation, which is the exponent of a nation’s 
morality and temper, proves that the law-giver him- 
self long held life but cheaply, for the death-penalty, 
with hideous accompaniments, smote the transgressor 
even when his sin was venial. What value would a 
military leader place upon the lives of men who had 
so little to lose by death? William III. is represented 
as a humane prince, and yet he violated the Treaty 
of Nimeguen to engage in a bloody but useless battle 
with Marshal Luxembourg. He ran no risk, he said, 
for peace having been declared he would have had to 
dismiss his troops. What are the pawns good for but 
to play the game? The long struggle between Spain 
and Holland, the religious wars in France and other 
countries of Europe, the chronic condition of general 
slaughter that was so long accepted as the normal 
condition of mankind—what do they testify to but 
the helpless state of men whose life was of little value 
to others or to themselves? 

With a growing consideration for human life comes 
the element of pity to soften the human heart and 
guide its emotions to gentler methods. Compassion 
and sympathy find a fruitful soil in generous natures, 


International Arbitration 13 


and are well matched with manly courage. War, 
real old-fashioned war, if I may use the expression, is 
the negation of kindly impulse. Tenderness to an 
enemy was an evidence of weakness, or of a hero's 
temporary aberration. When Horace describes the 
warrior whose exploits he loved to depict, the model 
warrior of his day, the fearless son of Thetis, he tells 
us what he would have done had Fate permitted him 
to enter Troy: 


Heu, nefas, heu! 
Nescios fari pueros Achivis 
Ureret flammis etiam latentem 

Matris in alvo. 


No doubt he would have slaughtered his foes, men, 
women, and children, even babes unborn, with un- 
distinguishing ferocity, and yet have been held the 
bravest of the brave. For such was war. 

So Julius Cesar, ages after this, when the manners 
of men had softened, sold the warriors of Gaul into 
slavery. He sold them by the hundreds and thou- 
sands, and paid his debts, or some of them, with the 
proceeds. This, too, was war, legitimate war, and he 
might rightfully do this as he might also drag the 
bravest of his foes behind his triumphal car, leaving 
him afterwards to die of starvation in a dungeon. 
There is no evidence that he was the less esteemed 
for acts like these. Certainly they were not used to 
sharpen Brutus’s dagger. 

But Time did not relax his kindly office. War con- 
tinued to be cruel and wasteful, but glimpses of sun- 
shine lighted up the darkness. Cities were still given 
to soldiers that they might plunder them, and pris- 
oners were sometimes slain in cold blood. The 


14 International Arbitration 


natural instinct of destruction broke out as it ever 
will when uncontrolled, but the tendency has long 
since been to humanize war, if such inconsistent 
expressions may properly be used. To prevent un- 
necessary suffering and to regulate destructive agencies 
has been the effort of more recent times. To treat 
prisoners with humanity, to spare noncombatants, to 
respect private property, these innovations upon the 
ancient methods testify to the growth of new ideas, 
and prove that war, as our forefathers understood it, 
has lost its hold, or at least has adopted new forms. 
Perhaps the day is not far distant when this same 
sense of compassion will place war among the relics 
of a barbarous past, in the company of the thumb- 
screw, the scavenger’s daughter, the torturer’s knife, 
and the fires that burned the witches. 

The historian of the late Franco-Prussian war tells 
us in a few lines that the Germans killed in one battle 
some twenty thousand brave French soldiers, and that 
the French on the same day slew and wounded the 
same number of brave German soldiers, and that the 
troops on both sides behaved very well. Forty 
thousand valiant men in one summer’s day, the flower 
of two great countries, mangled to death, in many 
cases before they could see the instrument of their 
destruction, powerless many of them to show their 
courage, except by their patient endurance, standing 
up as helpless victims before brutal and invisible 
agencies of death; forty thousand boys and men with 
unlimited treasures of usefulness to home and country 
in their strong hands, all gone in a breath, but with 
the consoling epitaph that they fought well! Did 
France and Germany, when they read that record, ask 
themselves if there was no other way to settle imagin- 


International Arbitration te 


ary or even real disputes, than this? Did they count 
the cost and value of these lives and ask themselves 
whether, in familiar phrase, the game was worth the 
candle? Or were they satisfied, on both sides the 
crimson stream, with the reflection that the dead men 
before they died had fought so well? 

If this had been all! But these early hecatombs 
were but a foretaste of more to come. The new guns 
continued to do splendid work on both sides. The 
fame of Herr Krupp and his products grew with the 
victims of his formidable machinery of death. The 
needle-gun did fine execution, so did the chassepot, 
and it is even yet a question with experts which of 
these two weapons can, under favorable circumstances, 
kill more men in a given time. Thus one of the ob- 
jects of the great war failed, and it is not yet definitely 
ascertained whether the French had better take up 
with the needle-gun or the Germans with the chasse- 
pot. They are both excellent of their kind, and can 
make more widows and fatherless children in the 
twinkling of an eye than Satan himself could have 
dreamed of a century ago. 

If this, the most recent of the great wars, failed 
to settle this important question, what has it settled? 
The sole difference between the two nations had 
something to do with the Spanish throne and the 
Hohenzollern princes, yet in the Treaty of Frankfort 
we find nothing that affects the succession to that 
throne, nor any limitation upon that family to accept 
such royal situations as they may please. But the 
treaty did in very plain terms provide that Germany 
should be rewarded with two French provinces, and 
four thousand million francs of French money. So 
that for twenty-six years past, France has mourned 


16 International Arbitration 


over the loss of her two daughters and regretted the 
ill-use to which her treasury has been put; during the 
same period Germany has spent these millions over 
and over again lest the peace be broken by which she 
keeps her new possessions. And that the circle of 
peace-loving nations may be complete, they all follow 
the same impulse and drag the men from the fields, 
and draw the coin from the treasury, to defend their 
provinces or, in the coming wreck of things, to secure 
those that belong to their neighbors. Thus are they 
all running a mad race to bankruptcy or mutual ex- 
termination, to save their honor if it should be assailed, 
to protect their interests if they should be imperilled, 
to destroy their neighbors if it should be expedient. 
Thus it is that the great Franco-Prussian war settled 
nothing, but unsettled everything! thus it is that six 
nations of Europe spend annually eight hundred 
million dollars lest the peace be broken and keep 
three million men under arms for fear of war. Thus 
it is that ten million men are ready to take their 
designated places on the checkerboard of war as soon 
as the signal is given. A condition of things abso- 
lutely unknown since the world was made; a threat 
of horrors which the human imagination is powerless 
to picture. The very magnitude of the indescribable 
slaughter, confusion, ruin, and desolation impending 
over the world is the safeguard of humanity; it 
affords a hope to the man who loves his kind. The 
time seems near at hand when utter exhaustion will 
do what sound reason has been powerless to accom- 
plish. The blessings of national bankruptcy have 
not yet been fully appreciated by the victims of war. 
How easily the calamity breeding war between these 
two great nations might have been avoided may readily 


International Arbitration ry) 


be told. There was in fact no quarrel between them, 
although a growing jealousy, and a feeling that the 
continent was too small for the aggrandizement of 
both. It was not an injury in the past, nor a griev- 
ance in the present that divided them into hostile 
camps; it was the apprehension on the one side that 
at some future day something might be tolerated by 
the other which ought to be resented, if it happened 
to be done. On that other side the confidence, justi- 
fied by the event, that if it came to hard blows Ger- 
many would derive a profit from her expenditure of 
men and money. In the temper of both there was 
little room for adjustment, except by friendly inter- 
vention. Great Britain made the offer and it is as 
certain as any event that has not actually become a 
fact, that a frank understanding through this friendly 
aid would have dispelled the clouds. The Treaty of 
1856 to which both France and Germany were parties 
was invoked to make intervention possible, but France 
rested her refusal upon the liberty allowed each party 
to that instrument to be the sole judge in all matters 
which involved her dignity. Prussia also declined the 
golden opportunity and we know the result. France 
has atoned in the dust of defeat and the humiliation of 
a dismembered territory for this view of what con- 
stitutes a nation’s dignity. Her trials and sufferings 
have not been in vain if the world has learned a lesson 
from her fate, and if her victor, even in his triumph, 
has discovered that such triumphs may be too dearly 
bought. 

The Franco-Prussian war has been selected and 
dwelt upon out of so many other wars, because it is 
the most recent and the most destructive and the most 
causeless, of modern times. It is a barren study to 


18 International Arbitration 


inquire into the respective responsibility of either 
nation. The warlike instincts of both were aroused 
and where two men or two million men are anxious for 
a quarrel the malignant fates to which they listen so 
readily, are sure to afford the pretext. Like our own 
War of Secession, the causes were sown many years 
before the victims fell upon the battlefield. These 
causes were deep in human nature and in past history. 
The fruit had grown and it must be plucked. But 
we are wiser to-day and know that there are other 
means of reconciling international quarrels than emu- 
lation in homicide. Strangely enough we, the young- 
est among the mighty nations of the world, have been 
schoolmasters for a hundred years. We have taught 
the possibility of ruling a great nation by law alone; 
we have taken the sceptre from kings and given it 
to judges, with advantage; we have suffered free 
speech and free writing to be pushed to the verge of 
lunacy, and yet have kept our freedom. Uncon- 
sciously the nations of the world are looking to us and 
following with hesitating step in the paths that we 
have trodden. Since we have, at the expense of costly 
amputation, rid ourselves of the blight of slavery, 
we stand morally in the very vanguard of civilized 
mankind; while we have been great enough to fear 
no army or navy of the world, we have shown our 
greatness still more conspicuously by our admiration 
of and devotion to peace. From the earliest days of 
our history we have condemned war as the enemy 
of the human race, from the earliest days we have 
advocated arbitration as the only reasonable method 
of adjusting disputes. 

Over one hundred years ago the young Common- 
wealth made its first treaty of arbitration to settle the 


International Arbitration 19 


question of boundaries with Great Britain, and from 
that day until this she has never hesitated to control 
her resentments and to hold back the anger of her 
people, that judgment and not violence might deter- 
mine the right. 

No other compact made by the United States was 
ever denounced so fiercely and opposed so violently as 
the Jay Treaty. It was considered by many as a 
surrender to Great Britain. Unreasoning and un- 
measured abuse was heaped upon it by the press, and 
it was long the chosen weapon of demagogues. This 
treaty contained a reference to a board of three com- 
missioners who were to determine a question touching 
our northeastern boundary. The matter in doubt was 
the line designated by the river St. Croix. It was 
finally held that the treaty-making powers had by 
that designation intended to describe the Schoodic 
River. 

The commission was also to determine the amount 
of compensation due certain citizens of Great Britain, 
which had been delayed by vexatious laws of some 
of the States. These laws were clearly in violation of 
the treaty of peace, but feeling ran so high that argu- 
ment was silenced. The opposition to this feature of 
the treaty was especially fierce, but thanks to the firm- 
ness of the Government and of the more reasonable 
element of the people, the arbitration was proceeded 
with. The case was one of those wherein it was said 
that our national honor was concerned, and that arbi- 
tration involved the loss of national self-respect. It 
does not seem to-day that the Government forfeited 
its honor by accepting the decision of a tribunal 
rather than by resorting to the chances of a war. 
There were men even in those days who failed to 


20 International Arbitration 


recognize the logic of war, and refused to accept its 
verdict as proving anything but that one of the fighting 
parties was stronger than the other. 

It is proper to add that, as a measure to decide 
disputed rights, this part of the treaty failed, one of 
the British commissioners, a Mr. McDonald, having 
persistently exhibited an insolent disregard of the 
feelings and opinions of his former fellow-subjects. 
His language was discourteous and offensive. Whether 
he designed it or not, he drove the American com- 
missioners to a withdrawal. Perhaps this arrogant 
tone of assumed superiority was not, after the treaty 
of peace, unusual; perhaps it was not unnatural that 
the representatives of Great Britain should exhibit 
some rancor when dealing with men but lately rebels 
against their sovereign’s authority. But fortunately, 
so far as the establishment of equal relations is con- 
cerned, the day was not distant when Andrew Jackson 
was to settle old scores, in his own fashion, at New 
Orleans. After this the atmosphere was cleared of 
much that was unpleasant, and the two nations could 
deal on equal and friendly terms. Since that day in 
January, 1815, many questions have arisen between the 
United States and Great Britain. They have always 
been settled in the same bloodless and inexpensive 
way. The indemnity to British subjects, which 
should have been determined by arbitration under the 
Jay Treaty, was finally agreed upon diplomatically, 
and £600,000 paid Great Britain. 

Other and most important questions were also sub- 
mitted to arbitration by the same Jay Treaty. They 
involved the rights of neutrals, the effect of prize- 
court decisions, and the rules in regard to contraband 
of war. Mr. Pinckney, the leading lawyer of his day, 


International Arbitration 21 


represented the Government of the United States as 
one of its commissioners. He delivered opinions in 
the course of the proceedings which, according to Mr. 
Wheaton, were finished models of judicial eloquence, 
uniting powerful and comprehensive argument with a 
copious, pure, and energetic diction. From that time 
until to-day we have on forty-seven occasions ap- 
peared as parties in these international litigations. 
In every case we have accepted the verdict as fully 
and freely as though countless bayonets were ready to 
enforce it, until we have established a practice of 
justice and fair dealing which has called forth the 
admiration of the world. Great Britain, to her honor 
be it said, has not been far behind us in the example 
that we have given. She, too, has preferred law to 
violence, and the two great English-speaking nations 
have seized every opportunity to resort to the forms 
of justice which appeal to their reason, rather than to 
indulge those instinctive resentments which are part 
of man’s inferior nature. 

The Treaty of Ghent, signed on the 24th of Decem- 
ber, 1814, and on its way to the United States when 
the battle of New Orleans was fought, was equally 
fruitful in arbitrations. The first question of differ- 
ence referred was that which involved the title to 
Passamaquoddy Bay. Curiously enough, the arbi- 
trators were two in number, it being stipulated that 
if they disagreed they should refer the points of 
difference to a friendly sovereign or state. They did 
agree, however, and made their award without foreign 
assistance. 

The same Treaty of Ghent provided for the ascer- 
tainment of the northeastern boundary of the United 
States from the source of the river St. Croix along a 


22 International Arbitration 


certain described course to the river St. Lawrence. 
Here the commissioners failed to agree, and sub- 
mitted their differences to the King of the Belgians, 
who made an award which both parties consented to 
ignore, as it did not profess to follow the line marked 
out in the treaty. 

Even a brief notice of the various arbitrations to 
which the United States have been a party would 
extend this paper far beyond its intended limits. It 
may be truly said, arguing from the frequency of in- 
stances, that a resort to arbitration has become the 
practice of the United States whenever its interests 
or the interests of its citizens clash with those of 
foreign Powers. Experience has demonstrated the 
wisdom of these submissions, and has proved that 
upon the whole they resulted in a just determination 
of the questions at issue. It may be confidently as- 
serted that the tribunals selected by great nations to 
pass upon conflicting rights are more likely to formu- 
late just and equitable judgments than to violate the 
judicial duty imposed upon and accepted by them. 

There are few more hopeful signs in the history of 
arbitration than that between Great Britain and the 
United States which is known as the Geneva Arbitra- 
tion. It is the most conspicuous instance of a resort 
to friendly adjustment where provocation was so 
great, for our people had indeed suffered under a real 
and bitter grievance. When the very existence of 
the nation was in jeopardy, when brother was arrayed 
against brother, and the whole fabric of our Govern- 
ment was tottering to possible ruin, a friendly nation 
connived at efforts of the Union’s enemies, and in- 
directly aided in their attempts at our disruption. 

Great Britain, by her conduct during the most trying 


International Arbitration 23 


period of the national history, had created general 
irritation among the people of the United States. 
She had sympathized almost openly with the re- 
bellion, and had permitted her ports to be used for 
building and fitting out privateers. The commerce 
of the North had been driven from the seas, valuable 
property destroyed, and material encouragement of- 
fered the States in rebellion. The sensitiveness with 
which this unfriendly action, and still more un- 
friendly inaction, on the part of Great Britain was 
regarded threatened to burst into open resentment. 
The circumstances were such as to make the efforts 
of the peacemaker equally delicate and difficult. It 
is to the credit of President Grant that, warrior as he 
was, he preferred this peaceful method of solving 
international questions to the lottery of war. His 
words do him great honor, and should be kept in 
lasting remembrance by his people: 


Though I have been trained as a soldier, and have par- 
ticipated in many battles, there never was a time when, in 
my opinion, some way could not have been found to pre- 
vent the drawing of the sword. I look forward to an 
epoch when a court recognized by all nations will settle 
international differences instead of keeping large standing 
armies as they do in Europe. 


If there is anything more difficult to forgive than 
injury we have suffered, it is the injury that we have 
inflicted. Both nations therefore had much to forgive 
and much cause for resentment, but they mastered 
the temptation, and the result was the great lesson of 
the century. 

The latest instance of an arbitration between great 
nations is that at Paris between the United States 


24 International Arbitration 


and Great Britain. The question to be settled in- 
volved the right of the United States to protect its 
seal interests in the Bering Sea and the North Pacific 
Ocean. That the seals resort to the territory of the 
United States for the purpose of breeding and suckling 
was practically conceded, as was the further fact that 
unrestricted pelagic sealing (7. e., killing at sea), being 
by its very nature indiscriminating, tends to extermi- 
nate the herd. Both parties conceded that this valu- 
able race of animals was in danger of rapid extinction. 
The chief point of difference between the two nations 
arose out of the claim of property made by the United 
States and denied by Great Britain. This assertion 
and denial threatened to produce serious complica- 
tions. The United States began by seizing the ships 
that were engaged in the depredations complained of, 
and in some instances caused them to be condemned 
under a statute prohibiting seal-killing at sea; but in 
view of the earnest protest and remonstrance of Great 
Britain it desisted from this summary course and con- 
sented to arbitration. What would have resulted 
from a persistent assertion of its rights by force, on 
the part of the United States, is of course a matter of 
conjecture. Mr. Phelps, Minister at the Court of 
St. James, was in favor of vigorous measures, and 
urged the continuation of the only course which, in 
his judgment, was consistent with self-respect. He 
felt and expressed entire confidence that Great Britain, 
knowing that she was in the wrong, would never go to 
war in defiance of the impregnable moral grounds on 
which the claims of the United States were based. 
This view was entitled to special consideration, 
emanating as it did from a profound jurist who had 
also proved himself an exceptionally skilful diplomat. 


International Arbitration 25 


But there certainly was some danger that the seizure 
of British vessels in the open sea might lead to a 
disturbance of the friendly relations between the two 
great Powers, and that danger was not to be incurred 
except under circumstances of exceptional gravity. 
War between two such Powers would set the hand on 
the dial far back and would deal a severe blow to 
those who longed for peace and good-will among men. 
If the two leading Anglo-Saxon nations cannot control 
their temper and their judgment, if they cannot settle 
their disputes by rational processes, where is the hope 
of the world? 

This made the Bering Sea controversy and its sub- 
mission to arbitration especially significant and im- 
portant. In proportion as the causes of irritation are 
more marked, and the appeal to national pride more 
stirring, just in that proportion is arbitration more 
difficult to secure, and more satisfactory when secured. 
The lesson is worth much to the world when a nation 
refuses to draw its sword under real provocation and 
trusts its cause to a tribunal of wise and just men. 

How such a tribunal should be constituted has been 
much discussed by writers. The fashion of referring 
international controversies to sovereigns has lost favor, 
and naturally, for the sovereign delegates others, of his 
own selection, to do the work of studying and prac- 
tically deciding the case. Dr. Francis Lieber ex- 
presses the opinion that the best tribunal is the law 
faculty of some foreign university, or a tribunal of 
jurisconsults whose vast knowledge and unswerving 
fidelity to justice and to legal truth had earned them 
an international reputation. To sucha court as is thus 
described the Bering Sea controversy was submitted. 
The United States claimed, with great confidence, 


26 International Arbitration 


that its cause was just; that it was based upon recog- 
nized principles of international law, upon sound rules 
of dealing as between nations, upon moral necessities 
long since admitted by the civilized world. 

The decision of the high tribunal in the Bering Sea 
controversy, while upholding the resistance of Great 
Britain to certain claims of exclusive right in the 
Bering Sea, has framed such regulations as practically 
put an end to pelagic slaughter and its destructive 
results. The United States reap the substantial fruits 
of the controversy, which was only initiated to pre- 
serve and protect the race of seals. 

Taking the arbitration as a whole, it must afford a 
singularly gratifying spectacle to the haters of war. 
Two great nations have entered into a friendly dis- 
cussion before an enlightened court to settle a dispute 
which threatened to produce an armed conflict. The 
forms of law, precious to both nations, have been care- 
fully observed by court and counsel; an earnest desire 
to bring out all the facts and all the arguments fairly 
to be based upon such facts has been apparent. The 
tribunal itself was admirably constituted. It was a 
judicial body composed of jurists of fame deservedly 
bestowed. The indirect results of this submission to 
peaceful methods must far outweigh in importance 
the immediate advantages which either party may 
claim to have received. When an honorable and 
satisfactory adjustment of international disputes is 
shown to be easy and economical by arbitration, war 
seems to be not only cruel but ridiculous. 

Especial praise should be awarded to Baron de 
Courcel, the presiding officer of the court. His un- 
varying tact, his dignified and judicial bearing, his 
quick apprehension, and manifest anxiety to be just, 


International Arbitration 27 


entitle him to a high place in the respect of both 
nations. If it be true, as he himself expressed it, that 
“every international arbitration renders war less 
probable,”’ he may well enjoy the satisfaction of know- 
ing that he and his distinguished associates have made 
mankind their debtor. 

Since these great object-lessons in international 
arbitration, it is idle to talk of insurmountable ob- 
stacles in the way of promoting peace. If the United 
States could condone the depredations of the Alabama, 
and Great Britain could pay for them as she did, arbi- 
tration must be easy. But it was never so easy as to- 
day. All the civilization of the age is against war, and 
its intelligence and learning, its science and its art, 
its greater tenderness for human life, its love of the 
beautiful, its commercial interests, all these are co- 
operating in harmonious solicitude to drive war from 
the face of the earth. The world knows too much to 
put its faith in war. What has war ever done to settle 
great questions? I speak not of defensive wars, of 
resistance to unjust aggression, for these may no more be 
condemned than the effort that the peaceful traveller 
makes to resist the banditti who look to his purse. 
Nations may be broken up and divided as in the case of 
the early colonies and Great Britain, and of the several 
American republics and Spain; war then seems un- 
avoidable, for the bonds that have become oppressive 
can only be rent by force. I speak of war as a con- 
flict between two independent nations, striving to 
obtain satisfaction for wounded honor, or to settle a 
boundary question, or to collect a financial claim. 
This procedure as a means of obtaining justice is fast 
becoming obsolete. And how should it be otherwise? 
Montaigne has truly said that “the envy or spite of 


28 International Arbitration 


one single man, his pleasure, or a fit of domestic 
jealousy, causes that ought not to excite two fishwives 
to scratch one another’s faces—these have been causes 
enough for great trouble.’’ But despotic rulers with 
this power for mischief are fortunately rare. The 
people must be consulted about war and have a voice 
on the subject. 

To us of America the problem may seem easier than 
to any other nation in the world, because we have in 
permanent session a tribunal of arbitration which we 
call the Supreme Court of the United States. Sover- 
eign States which have retained all their sovereignty 
that was consistent with “a more perfect union” ap- 
pear before that court and settle their differences, 
their boundaries, and their respective claims as easily, 
and acquiesce as readily in the result, as private in- 
dividuals. Iowa sues Illinois much as A sues B— 
takes out process, procures depositions, submits points 
of facts and of law, and leaves the rest to the court. 
Making due allowance for the distinction between the 
jurisdiction of this national court, dealing with mem- 
bers of the Union, and a court sitting to decide the 
rights of independent nations, we may still claim that 
the analogy between the two is marked enough to de- 
serve consideration. 

In 1876, even the bitterness of a contested election 
could not startle our people from their propriety. 
They made a court to suit the emergency; both sides 
submitted arguments and proofs to the tribunal; they 
accepted the result, and gave one of the most trium- 
phant examples in the history of the world of the 
extent to which a free people may forbear in accept- 
ing the forms of law for the preservation of peace. 

As long ago as 1848 the Treaty of Guadalupe Hidalgo 


International Arbitration 29 


was made between the United States and Mexico, pro- 
viding for arbitration as a general obligation on the 
part of the two countries. 


If, unhappily, any disagreement should hereafter arise 
between the governments of the two republics, whether 
with respect to the interpretation of any stipulation in the 
treaty, or with respect to any other particular concerning 
the political or commercial relations of the two nations, 
the said governments, in the name of those nations, do 
promise to each other that they will endeavor, in the most 
sincere and earnest manner, to settle the differences so 
arising, and to preserve the state of peace and friendship 
in which the two countries are now placing themselves, 
using for this end mutual representations and specific 
negotiations. And if by these means they should not be 
enabled to come to some agreement, a resort shall not on 
this account be had to reprisals, aggression, or hostility of 
any kind by the one republic against the other until the 
government of that which deems itself aggrieved shall have 
maturely considered, in the spirit of peace and good neigh- 
borship, whether it would not be better that such difference 
should be settled by the arbitration of commissioners ap- 
pointed on each side, or by that of a friendly nation. 


Public men have officially come forward and joined 
hands to condemn war. The Parliamentary League, 
so called, is gaining constant acquisition to its mem- 
bership. Only a few years ago forty members of the 
French and English parliaments came together in 
Paris as “friends of peace.”’ The outlook was not en- 
couraging. All Europe was, as it now is, armed to the 
teeth, and war seemed imminent. In October, 1891, the 
congress was held at Rome, and in four years the forty 
had reached fourteen hundred, all of them occupying 
a more or less conspicuous position in public life. 


30 International Arbitration 


A still nearer approach than the United States 
Supreme Court to a permanent international tribunal 
is the Federal Court, which settles all disputes arising 
between the various cantons of Switzerland. These 
cantons, it will be remembered, are different in blood, 
customs, and jurisprudence. They are French, and 
governed by the French code; German, and governed 
by the German law; or Italian, in which last named 
the legislation and jurisprudence of Italy have been 
followed. And yet for centuries these states have 
submitted their controversies to a court which may 
be traced back through various modifications to the 
fourteenth century. So near an approach to the 
great court which sits in the philosopher’s dreamland 
must give encouragement to those who abhor war as 
a crime and deride it as an absurdity. Calvo! claims 
that the Swiss system is a demonstration that the idea 
of a permanent tribunal for deciding controversies 
between people of different races is not the dream of 
a visionary, but quite practicable. 

There is no more formidable obstacle to causeless 
international conflict than the newspaper, provided 
the soldier can read it, which in our country at least 
he generally can do. True, the newspaper sometimes 
indulges for temporary purposes in wordy effervescence, 
and seeks to stimulate the fighting spirit for no whole- 
some end, but upon the whole the influence of the 
press is an influence of peace. The press realizes the 
value of international harmony from the standpoint of 
commerce, and on grave occasions is ready to advise 
against violence, to deprecate rashness, and to prefer 
reasonable settlement to violent experiment. 

A free press is the foe of war, not only when it raises 

WCalvos 113) 477. 


International Arbitration a 


its voice directly against violence between nations, but 
when it faithfully portrays the horrors that were never 
realized until men were brought face to face with their 
existence. It has done much to prevent war by 
bringing vivid pictures of its horrors into every home, 
by tearing off some of its fine but false pretences, by 
showing its ghastliness and ruthless destruction, as 
they were never shown before. Butchery unadorned 
is not a pleasant subject of contemplation. The war 
correspondent has been an apostle of peace; he has 
made his pen pictures preach an unconscious sermon 
to his readers. The pity of it never struck the looker- 
on as it does to-day. We generally saw war at a great 
distance, as through a glass, darkly, and heard but a 
vague and uncertain echo of the turmoil. 

The man who writes from the bloody battlefield, 
and pictures with his pen the scenes which he has 
witnessed, does more to impress the masses with the 
uselessness and barbarity of war than the most elo- 
quent preacher who ever thundered against horrors 
that he had not himself looked upon with his own eyes. 
Our fathers could not put their fingers into the wounds 
of war and touch them with their hands, as we may 
do without leaving our peaceful pursuits. When 
Napoleon sent off his couriers to announce to his 
people that he had carried a new victory to the nation’s 
credit, that he had captured thousands of prisoners 
and hundreds of flags, and dated his bulletins from 
Vienna, Berlin, Madrid, or Moscow, the people shouted 
for joy, the cannons roared, the Te Deums went up 
from Notre Dame, and little thought was given to the 
heartache of the mother who waited so anxiously, 
yearning through long weeks and months to know 
whether the brave boy that she loved had given his 


32 International Arbitration 


life with so many others for another feast of glory. 
The Grand Army Bulletin could not wait to give de- 
tails; it was enough for it to say that victory had been 
faithful, and that Austerlitz, Jena, Eylau, were to 
shine as new constellations in the firmament of national 
victories. To achieve these things men must die. 
‘“T have grown up on the field of battle,”’ said Napoleon 
to Metternich. “A man like me cares little for the 
lives of a milion men.” Perhaps but for this absence 
of pity, this indifference to human life, Waterloo might 
not have followed so closely upon Austerlitz, and 
Sedan might not have challenged Jena’s triumph. 

Still another enemy of war is the growing influence 
of woman. She has a voice, and it must be hearkened 
to. If her heart must break, she will not allow it to 
break in unnoticed silence. She has taken her place 
in literature, art, science, journalism. That influence 
is all in favor of peace. The Amazon is an extinct 
species. Joan of Arc clad in armor and leading men 
into battle is confined to the stage; besides, her sad 
fate is no encouragement to female belligerency; the 
fragrance of her sweet life and hapless end must 
suffice; she cannot be a model for modern woman. 
The role of the man has been to make war or peace, as 
he elected; the part of the woman to send husband, 
lover, son to gain glory or find death, while she watched, 
wept, and prayed. This distribution of parts was no 
doubt inevitable; but as hers was entirely uncom- 
pensated, she may well be excused if in the future she 
protests against conflicts in which she pays a great 
price and receives no reward. 

War, logically speaking, is an anachronism. It be- 
longs to other ages and other forms of civilization than 
those in and under which we live. Its brutality, 


International Arbitration 38 


cruelty, and injustice jar against the humanizing ten- 
dencies of the nineteenth century. Weare growing ac- 
customed to look elsewhere than to the hazards of the 
battlefield for the solution of international problems, 
and have learned that there are better and cheaper 
methods of settling controversies than those which 
depend upon heavy artillery and needle-guns. Com- 
mon schools, telegraphs, railroads, and universal 
suffrage are the handmaids of peace; they are the 
enemies of war. The ultima ratio of kings was based 
upon a blind and superstitious reverence for the 
royal majesty and its commands. But armies are no 
longer filled with unthinking and helpless creatures 
that killed, burned, ravaged, and destroyed because 
they were directed to do these things; these men con- 
stituted, in Napoleonic phrase, the chair a canon, or 
cannon food, and fed the roaring monster until it was 
gorged. But much of this is obsolete. Men want to 
know the reason for everything that they are called 
upon to do, and the newspaper gives it to them daily. 
A great monarch might say, “I am the state,’ and 
tell the truth when he said it. Who dreamed to dis- 
pute his commands or to question his justice? Surely 
not the peasant and laborer whose wretched condition 
made the army a refuge where bread at least was dealt 
out, although there were exceptions even to this. Coarse 
as was the food that he ate, he did not always eat his 
fill, and he fought and hungered while the farm lay 
fallow, and the wife and children wore out their lives in 
the futile effort to do his work. He fought and he fought 
bravely, he died unnoticed or returned unrewarded, 
until the time arrived for his son to take his place, 
and thus in never-ending monotony he fulfilled his 


destiny, for the glory of others, and at his own expense. 
3 


34 International Arbitration 


The heinousness of the crime of causeless war was 
never fully realized until it was felt that this was not 
the only means of vindicating national rights. It is 
possible to settle questions without violating all the 
commandments; it is not impossible to preserve 
national self-respect without the sacrifice of human 
victims. The boy who has grown into manhood after 
passing through years of schooling is soon taught these 
things, and learns that he himself has a certain im- 
portance. He may be only a pawn on the chess- 
board, but pawns may check the king. He may 
overrate but certainly does not underestimate his 
importance, and readily learns that he has a real if 
uncertain cash value. He does not care of his own 
free choice to shoulder a musket, even of the latest 
pattern, unless it is plain to him that the honor of his 
country is at stake. He is above all things practical. 
He will lay down his life if needs be, as bravely as the 
offshoot of any other race, but he will not be con- 
tented with a vague formula; he must have a reason 
for leaving his workshop or his farm to put on a uni- 
form, and looks to the press to tell him what the quarrel 
is about. He has been told and taught and is ready 
to believe that quarrels can be settled by judges as 
well where millions of men are concerned on each side, 
as where single litigants are engaged in vindicating 
their respective rights. 

He is practical and therefore wants a real solution. 
He wants a decision that settles something. He 
knows that wise and honest men who have carefully 
studied the evidence are more likely to reach the re- 
quirements of justice than armed troops however 
brave, with their commanders however patriotic. 
The wisest and best of the soldiers whom he has 


International Arbitration 35 


known have admonished him against war. “War is 
hell,” said General Sherman, and this monosyllabic 
description can scarcely be improved in brevity and 
truth. He had seen it at its worst, and had emerged 
from it one of the idols of his people, but he knew, be- 
cause he had seen, that the horrors that we can only 
imagine as the accompaniments of perdition may alone 
give an adequate idea of the horrors of real war. 

Such authorities as these will more than outweigh 
the few exceptions which we find to pat war on the 
back as a blessing, and to praise it as a divine agency 
for good. Hegel, for instance, says that war is not an 
absolute evil, and that perpetual peace would be a 
condition of moral stagnation for the nations. De 
Maistre, adopting a higher tone, declares that war is 
a divine fact, an instrument of the Kingdom of Provi- 
dence destined to the necessary expiation of the 
crimes of men. The soldier and the executioner, he 
thinks, are both professional killers who should be 
equally honored. It is a pity that such writers of 
paradox cannot find a less ghastly subject for the 
exercise of their unconscious humor. The most con- 
Spicuous advocate of war in modern times, however, is 
Marshal Moltke. “War,” he says, “enters into the 
views and designs of Providence; it is a means for the 
people worthy of fulfilling their object on earth, a 
divine mission not to fall into decay and to retemper 
the edge of their manhood.’’ A curious way indeed 
of avoiding decadence, and an expensive one. Was it 
necessary to slaughter the 40,o00 unfortunate men on 
the field at Vionville and St. Privat in order to re- 
temper the manhood of these two great nations? 
How many soldiers should be slain, and how many 
villages burned, and how many provinces devastated 


36 International Arbitration 


before the highest culture is reached? When and how 
can we be certain that decadence is stayed, and that 
progress requires no further killing of men? Who 
shall furnish periodical and plausible pretexts for war 
to be applied when the necessity arrives, not that 
Justice may have her sway, but that men may not be 
pampered into effeminacy by the charms of peace? 
We might ask this great warrior when he discovered, 
and how, that war entered into the views and designs 
of Providence; what winged messenger of the Prince 
of Peace vouchsafed for his private illumination the 
fearful fact that war was permitted to nations worthy 
of fulfilling upon earth a divine mission, to preserve 
them from decay. If we can feel quite sure that this 
accomplished soldier really was inspired to express 
such appalling sentiments, we must despair of the 
future of the world. Then, indeed, may Peace, veiling 
her tear-stained face, fall at the feet of the great 
warriors, proclaim her abdication, and yield her sweet 
offices to the demands of bloody war. 

No, neither Marshal Moltke, nor others who may 
take the same dark view of the tendencies of the 
human race, can stem the current and beat down the 
rising tide. The world has supped full of horrors and 
slaughter and needless destruction for thousands of 
years and when the dawn appears on the horizon we 
may be assured that the sunshine is about to rise; we 
know that the storm is over when the sky is red. 

It is true that the more humane civilization of the 
age has sought to mitigate the cruelties inseparable 
from a condition of war. The victorious army no 
longer turns its prisoners into food. The vanquished 
are no longer sold as slaves for the enrichment of 
the captors; they are treated with such humanity as the 


International Arbitration BF 


situation of the parties permits. But nevertheless the 
horrors and destruction incident to modern warfare 
are ascending in a rapidly increasing ratio. The in- 
genuity of man is nowhere more manifest than where 
he devises means for dealing death upon his fellows. 
While, as we have seen, there may be a rational 
difference of opinion as to the comparative merits of 
the chassepot and the needle-gun, the race has not 
stopped. One nation has devised a new rifle which is 
spoken of with delight and admiration by experts; it 
is a gem as an agent of speedy annihilation. The 
bullet has emerged from the elementary condition as 
a simple perforator of the human organs, for it has 
been taught, while it breaks the bone, at the same time 
to pulverize it, so that the great advantage is pre- 
sented by its use not only of temporarily disabling the 
smitten limb, but of insuring against recovery of the 
victim, the superadded benefit of compulsory am- 
putation being among the rewards of the new plan. 
Besides, the bullet itself is encased in nickel plate, 
thus affording in its improved appearance an artistic 
presentation of added capacity for mischief which 
deserves admiration and praise, if it be inspired by 
Providence to prevent national decay. 

This for the smaller weapon which can only deal 
death at the rate of three or four men to one bullet. 
But the main progress seems to be in the production of 
the huge monster whose powers to mow down columns 
of men like blades of grass have been greatly increased. 
The new Canet gun which appears to have been 
adopted as a peace-preserver by the French Govern- 
ment will throw a shell loaded with 300 bullets five 
times a minute with a range of seven thousand yards. 
But Herr Krupp is not to be undone by these Gallic 


38 International Arbitration 


efforts to avoid war, and it is mysteriously said that he 
has contributed to the good cause a still more eloquent 
advocate of German philanthropy. It is suggested in 
addition that such improvement in armaments will 
require additions to the army, which will be increased 
in France by 75,000 men, naturally necessitating the 
same addition of guardians of the peace on the side 
of Germany. We are thus rapidly approaching the 
hitherto unknown condition where huge armies will 
destroy each other before either is visible to the other 
save through a telescope. Perhaps this intolerable 
progress is to be the means, in the designs of Provi- 
dence, of averting a conflict which no man can con- 
template without the feeling that a new vista of 
horrors may teach the world, at any moment, that 
the wars of the past have been as the games of children: 

If the advocates of war will only ponder upon these 
things, and try to bring before the eye of their fancy an 
image of the possibilities which they are striving to 
turn into probabilities, they may conclude that the 
blood-letting which they so cheerfully advocate may 
not be regulated according to hygienic principles. 
The life-blood of a nation is too precious to be left to 
the mercy of experts, who are experts only in shedding 
it, but who are not always able to stop the flow of the 
life-giving fluid after they have started it. For war 
is cruel and wasteful at its best, and we may expect to 
see it at its worst when it next breaks out: what that 
worst may be imagination cannot picture, for there 
is nothing in the records of the past to afford facilities 
of comparison. 

To-day the United States and Great Britain are 
striving to crown the glories of this dying century with 
something better and greater than the world has seen. 


International Arbitration 39 


It is proposed to abolish homicide as a test of inter- 
national right, by submitting causes of dispute to the 
calm judgment of wise men; a solution so simple and 
so economical that it requires great ingenuity to 
assail it with plausible reasons. All concede that in 
theory the plan is admirable, that in practice on 
a limited scale it has proved of priceless value, 
that it is infinitely more likely to produce rational 
results than the only other alternative, viz.: resort to 
war. 

But, say the objectors, what if our national honor 
should become involved? A momentous question 
indeed, and one absolutely impossible of reply, until 
we are told what is this national honor, wherein it 
lies, and how best it may be asserted. In what one 
of our many differences with Great Britain has our 
honor become so involved that the delicacy of its 
constitution required a prompt and vigorous régime 
of blood and iron? And yet we have had hot and long 
disputes where honor might have been called to the 
front by either nation, and made the pretence for a 
refusal to arbitrate. A nation’s honor, I would ven- 
ture to say, is never compromised by temperance nor 
injured by forbearance. A nation’s honor is not 
served by rash counsels, nor by violent impulses reck- 
lessly indulged in. It is indeed a frail and delicate 
possession, if it cannot live in an atmosphere of peace, 
it is a dangerous one if it is tarnished by friendly dis- 
cussion and a disposition to hearken to the voice of 
justice. National honor may perhaps shine all the 
brighter when a great nation is slow to admit that her 
just dignity may be imperilled by the act of others. 
The honor of a nation is in her keeping, not in that of 
her neighbors; it cannot be lost save by her own act. 


40 International Arbitration 


To preserve her honor should be her main object and 
purpose, but she should not readily believe those who 
tell her that by hard blows alone may its integrity be 
protected. A nation’s honor consists in fidelity to her 
engagements, in carrying out her contracts in spirit 
as in the letter, in paying her just debts, in respecting 
the rights of others, in promoting the welfare of her 
people, in the encouragement of truth, in teaching 
obedience to the law, in cultivating honorable peace 
with the world. How can our national honor be so 
grievously invaded that there can be no room for 
remonstrance, no time for discussion, no opportunity 
allowed the aggressor for amendment? Spain within 
a few years offended Germany most grievously, and 
it was said insulted her flag, but Germany neverthe- 
less arbitrated with Spain, and allowed the Pope to 
decide the question at issue. Has Germany’s honor 
suffered thereby? We seized British ships in the 
Bering Sea and condemned them in our ports, a most 
grievous insult according to the sensitive and self- 
constituted custodians of British honor; but Great 
Britain adopted peaceful counsels, and a wise court 
heard, examined, and decided the case without any 
apparent injury to British honor. Why is war a more 
teliable defender of our national honor than arbitra- 
tion? Readiness to fight may serve to prove that our 
country is not afraid to fight, but the world knows 
that to-day and needs no proof. War may prove that 
we have a gallant people behind our Government ready 
to spend life and fortune for a good cause, but the 
world knows that of old. Why renew that proof? 
War may show that our financial resources are prac- 
tically inexhaustible, and that we are able to build 
and buy the most approved engines of destruction, 


International Arbitration Al 


but that, too, is of public notoriety. Let us not call 
witnesses where the facts are conceded, nor embark 
upon expensive methods to satisfy the world of what 
the world is already quite convinced. As with men 
honor often means pride unembarrassed by scruples, 
so it may be with a nation. The standard with men 
differs according to latitude and surroundings, to 
social institutions and traditions, to civilization, re- 
ligion, and many things. Men resort to the shotgun, 
the revolver, the bowie knife, or the club to heal or 
defend their honor, and lose it as often as they mend 
it. The effort of civilization has been for years to 
teach them that violence is not the safest champion of 
offended dignity, that the methods of the bravo, the 
manners of the ruffian, or the tyranny of the bully 
may best be dealt with by a firm court and an officer 
of the law. Why should nations be prompt to seek 
redress through force, so long as reason may be heard 
and reason’s voice is still respected? 

Bluster with nations as with individuals is dying 
out. It is heard at times, but its voice squeaks, and 
shows senility. It cannot as of old arouse a nation 
into unthinking wrath nor drive it from its propriety. 
The wisdom and the experience of the world are 
against it. 

It was a favorite saying of Napoleon (he had bor- 
rowed it from Montesquieu), that no man is strong 
enough to fight against la nature des choses (the nature 
of things). It will get the best of him in the end, for 
the moral forces of nature are based on immutable and 
eternal principles; they will not be put down. They 
may be delayed, but they cannot be stayed. 

The day has gone by when honorable preferment 
could only be gained in war. The splendid triumphs 


42 International Arbitration 


of peace are winning over the heart of man from the 
glories of war. Perhaps the boy of to-day, by the 
time he has cast his first vote, may think it as well to 
be an Edison as a Napoleon, a Pasteur as a Wellington, 
a Franklin as a Moltke, to build as to destroy, to 
save as to kill, to love as to hate. To labor for his 
bread and to earn it by the sweat of his face is the 
curse, mercifully transformed into a blessing, but 
labor must and shall enjoy its rewards in peace. The 
divine Founder of the Christian Church gave His peace 
and left His peace to those who followed Him, as a 
priceless gift; now His followers with insistent prayer 
that has been growing into irresistible volume demand 
of their rulers that this inheritance shall not be taken 
from them on vain and shallow pretexts. Order has 
become the watchword of a growing civilization and 
order means the law, not the law of violence, not the law 
facetiously called the law of war—that is the law of 
lawlessness—but the law which grows from a living 
sense of justice, which depends upon reason, which 
invokes patience. 

The war of the future shall be the bloodless war of 
right against wrong, of good against evil, of truth 
against falsehood. We have had bitter and bloody 
wars called wars of religion, but the universal rule is 
to-day toleration and charity in the realm of con- 
science; can we, shall we, in the light of nineteen 
centuries of Christianity, ever see such wars again? 
We have had great wars of succession, but the suc- 
cessions of kings and presidents are settled by law, 
and the claim to rule as of divine right, if ever made, 
causes a smile of courteous commiseration. Wars 
of conquest have devastated the world, but who seeks 
to-day to remove his neighbor’s landmark? The 


International Arbitration 43 


grave causes of war that made deadly conflicts as 
inevitable as they were frequent have died out. 

The old element of personal prowess too is fast 
disappearing. Fancy the grim veterans of Napoleon's 
Old Guard as with steady eye and steady step they 
marched with glistening bayonets to decide the day, 
cool as on a holiday parade, ready to die for their 
great leader’s fame, knowing but one duty and doing 
it—fancy them to-day with modern weapons mocking 
their courage and bidding them to die before they 
could reach their foe; fancy our gallant Sheridan with 
his Winchester braves charging a battery of guns that 
kill at five miles’ distance or meeting infantry that was 
dealing out death at such a rate that personal gallantry 
meant only patient endurance of certain death. Let 
those who talk of war and its glories ponder upon 
these things and remember to what they would con- 
demn the men whom they so flippantly enlist for the 
battles of the future. The prejudices, caprices, errors, 
and passions of men may defer the hour of triumph, 
but come it must; the constant tendency of man is 
towards peace, as soon as he emerges from the prim1- 
tive condition wherein he most closely resembles the 
inferior tenants of the earth. Individually he longs 
for rest and the enjoyment of life. He undergoes 
hardship that he may have security and ease. Two 
thousand years ago the Roman poet expressed it in his 
graceful verse that can only be inadequately trans- 
ferred into English: 


Caught in the wild A¥gean Seas 

The sailor bends to heaven for ease, 
While clouds the fair moon’s lustre hide 
And not a star his course to guide. 
Furious in war the Thracian prays, 


44 International Arbitration 


The quivered Mede, for ease, for ease, 
A blessing never to be sold, 
For gems, for purple, or for gold. 


The good fight of peace, and for peace, is fairly won. 
Honor to those who have achieved it, and shown them- 
selves the friends of the human race. The great 
consummation may be deferred, but come it will. As 
Hamlet said of death: “If it be now, ’tis not to come; 
if it be not to come, it will be now; if it be not now, 
yet 1t will come.”’ 








If 


THE ANGLO-AMERICAN ARBITRATION TREATY ! 


TREATY of peace has heretofore been the post- 

A script of a war. Nations fought their way to 
such a treaty through more or less sacrifice of 

life and destruction of property. As a rule physical 
and financial exhaustion was a condition precedent to 
the establishment of friendly relations on a permanent 
basis. One nation had to be beaten into something 
like insensibility before the two could unite in the 
necessary declarations of good-will and the customary 
bonds to keep the peace. Tradition had ordained 
that a nation’s honor required to be lubricated with 
blood in order to be kept in good working condition. 
Both of the conflicting nations usually assured the 
other nations that were looking on, of the imperative 
necessity under which the honor of each was placed to 
do some fighting to keep it fresh and bright. When 
a sufficient number of men had been slaughtered, and 
a proper number of towns had been burned and 
plundered, and when the treasury of either or both 
was empty, Honor smiled once more with restored 
cheerfulness, made her graceful obeisance, and retired 
from the scene, leaving the victor to have his way. 
Honor, national honor, has been a priceless possession, 

1 From The Forum, March, 1897. 
45 


46 Anglo-American Arbitration Treaty 


but a very expensive one to keep; the more expensive 
because of its uncertain character, its vague definition, 
and its unreasonable demands. One thing is certain: 
that, when the leaders of a nation have concluded 
that the honor of the country is at stake, some one 
must be attacked and, if possible, destroyed. The 
salutary process of a bloody baptism can alone reno- 
vate and preserve this delicate and susceptible quality 
of a nation’s constitution. 

And now come before the world two quiet gentle- 
men, without any swords by their sides or revolvers 
in their belts, who venture to say that the old practice 
is really obsolete and perhaps a little foolish; that war 
is very expensive, very cruel, and quite unphilosophi- 
cal; that perhaps it were better to make the peace 
before the war than after. They suggest that the ex- 
periment is worth trying, and may be tried without 
apparent danger; for, if it should fail, there would 
still be plenty of time to raise armies, to build fleets, 
to bombard ports, to blow up ironclads, to make 
homes desolate, to break mothers’ hearts, and to lay 
heavy burdens of debt upon generations to come. It 
may be that the instinct of destruction that lies so 
near the surface of human nature will break out in 
spite of all such efforts; possibly atavism may be too 
strong, and the lion, the wolf, the hyena, and the 
jackal may still have their way; but an inexpensive 
attempt to save much money, much human life, much 
property, and to avoid incalculable suffering is worth 
the effort. So the two gentlemen, who assured each 
other of their mutual consideration until they united 
in the proposed Treaty of Arbitration which is now 
before our Senate, deserve respect and the thanks of 
the world for their good intentions. It is barely 


Anglo-American Arbitration Treaty 47 


possible that they are acting in advance of their 
generation, and that their efforts for the welfare of 
mankind may be premature; but their credit will be 
none the less in the years to come. Their work is as 
certain to bring forth good fruit as the seed that falls 
on rich soil and receives the rains from heaven is sure 
to germinate and bud and flower. Reason must 
triumph in the end. Blind men in broad daylight may 
insist that all is darkness; but that is the result of 
their infirmity. The light is there none the less. 

It is no diminution of the merit of the chief actors in 
the Arbitration Treaty that all the conditions were in 
their favor. Arbitration was no novelty when they 
undertook their task of putting another brake on the 
savagery of men. The fashion of submitting inter- 
national differences to the deliberate judgment of wise 
men had become so general as almost to create a prac- 
tice. It is so cheap that it commends itself to the 
commercial instinct of the world; so humane that it 
strikes a responsive chord in the hearts of all those 
who love their kind. Its assimilation to the legal 
methods that serve men in their private disputes ap- 
peals to the reason of all who prefer to abide by law 
rather than resort to the shotgun or the revolver. 
Nor can it be denied that the majority of those who 
do the fighting are quite willing to forego their chances 
of military preferment and renown, if the interests 
and honor of their country do not require their as- 
sumption of a soldier’s duties. In brief, the moral 
forces of the day are in favor of a peaceful solution of 
international disputes, where such a solution is pos- 
sible. Boys cannot go to the common schools without 
learning something about war—its uncertainties, its 
horrors, and its dangers. While their early instincts 


48 Anglo-American Arbitration Treaty 


lead them to dream of martial renown as the summum 
bonum of life, they do not in their youthful dreams 
make much distinction between Alexander the Great 
and Captain Kidd. But they are content, as a rule, 
when they have donned the toga virilis, that is, out- 
grown knickerbockers, to become and remain quiet 
and hard-working citizens. All this without prejudice 
to a manly disposition to make a sacrifice of home and 
of comfort when the country calls; but then it zs a 
sacrifice and not a choice. 

Arbitration, in a word, has become one of the 
accepted dogmas of our national creed. Our nine- 
teenth-century civilization is not content with such 
mitigations as a growing humanity claims to have 
introduced into the conduct of war. War is, at the 
best, cruel and brutal: it is the negation of law and 
the assertion of force in the place of law. Voltaire 
was not so far wrong when he said: 


The laws of peace I understand well enough,—they con- 
sist in keeping our word and leaving our neighbor to enjoy 
the rights which nature has given him. But as for the 
laws of war I do not know what they are. The code of 
homicide seems to me a strange inconsistency. I hope 
that we may soon be provided with the jurisprudence of 
highway robbery. 


That arbitration has satisfactorily stood the test of 
experiment, statistics demonstrate. The United States 
Government has entered into forty-seven agreements 
for international arbitration—not to speak of the 
erection by it of thirteen tribunals under its own laws 
to determine the validity of international claims. A 
simple explanation this of the fact that we have a 
small standing army of 25,000 men and do not know 


Anglo-American Arbitration Treaty 49 


to-day what war taxation means. We pay one 
hundred and fifty millions a year, it is true, to old 
soldiers who have done their fighting well and in a 
good cause; but this is manifestly better than taking 
the same money to keep young men out of the work- 
shop, the field, or the factory, to prevent war by 
making it easy. 

In Europe, too, arbitration has become a familiar 
visitor at the palaces of kings, and has become so 
popular a guest that her services are in constant and 
growing demand. What our example to-day may 
do, what splendid possibilities it opens to the world, 
what burdens it promises to remove from the over- 
worked and overtaxed people, no imagination can 
describe. It may not,—cannot,—ina day ora century, 
lay at rest the spirit of violence and aggression; but 
it may teach a lesson that will make the world happier 
and better every day that it is studied. 

The sole difference between the Olney-Salisbury 
Treaty and the half-hundred that we have already 
had, lies in the fact that in other cases specific in- 
stances of controversy were disposed of: to-day we 
are provided with machinery to adjudicate every dis- 
pute that may arise. Why the formulas and pro- 
cedure should be renewed and readjusted fifty times 
or one hundred times to fit cases at intervals, rather 
than to cover all cases by a careful and intelligent 
scheme of practice, is not very clear. The only 
possible—I shall not say plausible—ground of ob- 
jection must be that a controversy may arise of such 
a character as to make arbitration less desirable than 
blows. If our national honor were concerned, it is 
gravely alleged, no aspersion on that delicate organ 
could be treated otherwise than with bombs and guns. 


4 


50 Anglo-American Arbitration Treaty 


A great nation cannot talk, when her honor is assailed ; 
action must be then prompt and energetic. Speech 
was not given to men to discuss questions where 
honor is concerned. Wholesale homicide is the only 
remedy for such an assault. Thus France twenty-six 
years ago refused arbitration because her honor—her 
dignity she called it—was involved. Whereupon she 
sacrificed several hundred thousand of her bravest 
children, lost two of her finest provinces, and paid the 
assailant of her dignity eight hundred million dollars 
to go home. No doubt her honor (or her dignity) 
was worth being preserved at that price; but even 
those who love her and sympathize with her in her 
great tribulation so nobly borne, may wonder if she 
could not have preserved her unsullied fame even had 
she accepted a friendly Power’s mediation. It is not 
so clear that calm and temperate discussion may not 
co-exist with a jealous sense of self-respect: on the 
other hand, it is not certain that readiness to strike 
necessarily proves the possession of common-sense or 
a reasonable knowledge of what is due by a nation to 
itself and to its citizens. 

Those men, therefore, who oppose a general arbitra- 
tion treaty should be called upon to explain precisely 
what they understand by “a case involving the honor 
of the nation.’”’ It is evident that men will differ 
about the definition according to their education, 
temperament, or the necessities of their station, if they 
happen to occupy positions depending upon popular 
favor. Brave words are undoubtedly powerful agents 
of disturbance, and will effect what argument is power- 
less to accomplish. It is easier to inflame public 
resentment than to pour oil on the troubled waters of 
popular excitement. A dispute of any kind may be 


Anglo-American Arbitration Treaty 51 


tortured by a demagogue into an insult that demands 
instant reparation. A denial of any claim by a foreign 
Power may be argued into an assault upon a nation’s 
dignity. But this readiness to magnify incidents that 
affect interests into events that affect honor has had 
its day; and we may be thankful that we have emerged 
from a condition of doubtful strength, which might 
increase our impatience of contradiction by leaving 
room for the suspicion of fear. 

The advocates of arbitration may, in considering 
this objection, derive much comfort from the reflection 
that during a century of existence, wherein we have 
arbitrated so many differences with foreign nations, 
we have not yet been confronted with a case which 
was not susceptible of amicable adjustment. We 
have never yet found that our national honor could 
not co-exist with legal processes. Irritating questions 
have undoubtedly arisen; the warlike element has 
sometimes asserted itself, as when it declared it was 
a question between “54° 40’ or fight”; but our prac- 
tical good sense overcame the ultra-patriotic men who 
were burning to immolate themselves on the altar of 
the country’s honor. Boundary questions have been 
settled, money demands have been passed upon and 
liquidated, we have had the benefit of the judgments 
when in our favor, we have discharged our debt when 
the decree was against us, and in every case we have 
been infinitely the gainers. 

No case in modern times has offered a better pretext 
for the avoidance of a submission to arbitration than 
the Alabama case. Here, if ever, it might be main- 
tained that the honor of the two nations was concerned. 
Great Britain was charged with evading the rules of 
just international intercourse by allowing the Alabama 


52 Anglo-American Arbitration Treaty 


to escape and to prey upon our commerce —an 
imputation which might well throw the British chau- 
vinist into a delirium of patriotic indignation. The 
United States might well, on its side, find in this 
hostile action the material for the war-producing in- 
sult which lies so close to the warrior’s heart. But the 
two great nations quietly thrust aside these suggestions 
of the Evil One; they treated the question as one 
sounding in damages; a verdict was rendered for an 
enormous sum, which was promptly paid; and the 
two English-speaking nations gave to the world their 
first object-lesson in Common Sense and Reason and 
Justice. The present treaty is merely the natural 
outgrowth of the Alabama case: it is its legitimate 
offspring and with it entitled to the admiration of 
civilized mankind. 

The Lord Chief Justice of England, while professing 
that love for peace which so properly belongs to his 
cloth, asks, with an anxious solicitude, “Who will 
compel the contracting nation to arbitrate, if she 
should refuse? Who shall compel her to abide by the 
judgment, if she repudiates the award?” 

It is of course within the bounds of possibility that, 
having solemnly agreed in the face of the world to 
arbitrate their disputes, either the United States or 
Great Britain may be false to its promises and recreant 
to its obligations. In such a case, it is manifest that 
there is no international gendarme to coerce the re- 
calcitrant contractor to perform its duty. But this is 
equally true of every national obligation. Every 
treaty between two great nations—whether for the 
settlement of a boundary or the payment of an in- 
demnity—must rest on the good faith of the parties. 
The difficulty of coercing fulfilment is precisely one 


Anglo-American Arbitration Treaty 53 


of the reasons that makes repudiation most difficult 
for a high-spirited nation. If the absence of physical 
power to enforce is to prevent the conclusion of arbi- 
tration treaties, it is difficult to see why the argument 
will not apply in all other cases. We are encouraged 
by the history of the past to believe that the objection 
is without force. In no case that I can recall has a 
great nation dishonored her hand and seal by refusing 
to carry out the decrees of the tribunal to which she 
has submitted her claims or her arguments. Great 
nations might dishonor their signature, but as a rule 
they do not: hence the value of British Consols and 
United States Bonds. 

But, granting that so unexpected an event should 
occur, in what respect would the situation be changed 
for the worse? The original claim would still exist, 
liquidated by a judgment and fortified by the approval 
of public opinion. This at least is a risk that either 
party may well run, even if this pessimistic view of 
what may be expected from a civilized nation should 
be more generally entertained than it has hitherto 
been. 

A more specious objection is made by those who ex- 
press and no doubt feel some solicitude lest the Ameri- 
can doctrine, which dates back to the time of President 
Monroe, should be in some way endangered by a 
general agreement to submit disputes with Great 
Britain to arbitration. 

The right to exclude Europe from fresh acquisitions 
on the American continent is one which our people 
will never surrender unless coerced by force. Not 
only do they cherish it as a sentiment based upon 
honorable tradition, but the instinct of self-preserva- 
tion makes it just and reasonable. A nation is not 


54 Anglo-American Arbitration Treaty 


bound to apologize for her insistence upon the right 
to live and to grow. Her natural expansion cannot, 
with her willing assent, be embarrassed by the creation 
of obstacles which it is in her power to prevent. The 
rival nations of Europe may fight for supremacy to 
their hearts’ content on European soil, they may parcel 
out the Dark Continent among themselves, they may 
lop off slices of China, appropriate Egypt, or invade 
Japan—we are disposed to abide by the rule of non- 
intervention with religious fidelity. ‘So far as they, 
or any of them, have already acquired a foothold on 
American territory our good faith will not permit us 
in any way to intervene in their affairs. But, rightly 
or wrongly, we believe that our interests consist in 
checking aggression when it is directed against our 
weaker neighbors. 

If, therefore, it be true that we should, by this 
treaty, imperil rights of such vast importance, we 
might well hesitate to bind ourselves by its terms. It 
might be urged with great plausibility that such a 
sacrifice is not one that we should be called upon to 
make, even in so great a cause as that of international 
peace. Prudence would require that, assuming such 
a danger to exist, we should in express terms except 
the Monroe doctrine from the operation of the agree- 
ment, or, failing this, that we should continue as in 
the past to provide for each emergency asit arises. It 
will not be denied by the most earnest advocate of the 
treaty that if, in terms, it provided that the Monroe 
doctrine and its applicability were subjects of proper 
submission to a Court of Arbitration, public opinion 
would almost unanimously condemn and most earnestly 
oppose its consummation. 

Is there, in fact, any such grave peril? Is it to be 


Anglo-American Arbitration Treaty 55 


assumed that a case may arise between the United 
States and Great Britain, the result of which, upon 
an arbitration, might be to eliminate from our un- 
written code a theory of right which is deemed of such 
vast importance by the majority of our people? 

There is nothing in the history of the past to make 
any such contingency a subject of legitimate appre- 
hension. Any argument based on its existence may 
be ingenious, but it is purely academic. It should 
exercise no practical influence on the decision of the 
question. 

The Monroe doctrine may be treated, in reasoning 
out this problem, as a part of our organic law. It is 
entitled to the same respectful consideration as though 
the Monroe message had been made the subject of a 
constitutional amendment. The fact that it has not 
received the formal sanction of our people does not 
affect the matter: for the purposes of the argument 
it should be vested with the dignity of a constitutional 
provision. 

No foreign Power can properly complain that it has 
not had full notice of the jurisdiction that we claim 
over the concerns of the American continent. 

If, under such circumstances, Great Britain may 
properly bring up the Monroe doctrine for review, she 
may also attack any other of the fundamental doc- 
trines of American policy. She may, with equal 
propriety, ask the arbitrators to examine our Declara- 
tion of Independence. She may attack the com- 
mercial and police clause of our Constitution and 
insist upon a judgment that a republican form of 
government, being far inferior to a constitutional 
monarchy, ought of right to be abolished, and the 
latter be permitted to take its place. This would 


56 Anglo-American Arbitration Treaty 


naturally involve an equivalent right on the part of 
the United States to insist upon the abolition of the 
House of Lords as a useless encumbrance, and of 
royalty itself as an expensive anachronism. If courts 
of arbitration are formed for the purpose of amusing 
the world with platonic discussions, any one of these 
topics might be appropriately considered; but no one 
would seriously contemplate the possibility of vesting 
a court, however eminent, with the right to pass upon 
questions which affect the fundamental principles of 
the respective governments. Concrete cases, not ab- 
stractions, are the proposed subjects of submission. 
The establishment of a boundary line, the payment of 
an indemnity, the restoration of a ship, the liberation 
of a prisoner,—all these are capable of investigation 
by a tribunal and may reasonably be submitted; but 
no Court of Arbitration, any more than the Supreme 
Court itself, will take cognizance of a contest which 
does not involve a personal or a property right. 

It will no doubt be said that this reductio ad absurdum 
does not dispose of the difficulty, because the Monroe 
doctrine may be involved indirectly, although sub- 
stantially, in a boundary question affecting Great 
Britain and the United States. We might then, it 
is argued, find the right of the United States challenged 
under such conditions as to compel us either to decline 
arbitration, notwithstanding our agreement, or to incur 
serious danger where fundamental rights are concerned. 

The objection deserves examination. 

The only contingency in which may arise a dis- 
cussion involving, in any form, the nature, validity, 
or effect of the Monroe doctrine is one of boundary— 
where territory is or may hereafter be claimed by 
Great Britain on the one hand, and by a Southern 


Anglo-American Arbitration Treaty 57 


American Republic on the other. Even then no dis- 
pute involving the interests or the dignity of the 
United States would arise unless (1) all efforts at 
settlement by diplomacy had failed between those 
countries; or (2) arbitration was rejected by one of or 
both the parties in interest. The attempt of Great 
Britain to seize the tract in dispute by force of arms 
might, and probably would, arouse the susceptibility 
of the United States and call for the application of the 
doctrine which we are considering. This has already 
happened in the case of Venezuela and Great Britain: 
it may happen again. What would the course of 
action presumably be shoulda similar situation present 
itself in the future? 

There is no misunderstanding between the United 
States and Breat Britain as to the character and extent 
of the jurisdiction claimed by the former in cases of the 
character supposed. Great Britain has been informed 
that it is a cardinal principle of American policy— 
claimed to be reasonable and just—that the United 
States may, where its interests dictate, interfere to 
prevent the spoliation of a sister republic. Great 
Britain is as well informed of this as it is of the aboli- 
tion of slavery in the South, or of our refusal to abolish 
privateering. The treaty is made im wiew of this 
knowledge and with the acceptance of that fact as fully 
as it is of the fact that we constitute a union of sover- 
eign States. If Great Britain should attempt by force 
to take territory from Venezuela, Colombia, or Peru, 
the only question would be, To whom does the territory 
belong? This would be a proper subject of arbitration, 
and would regulate the extent to which this Republic 
might properly intervene. But there is no ground for 
supposing that Great Britain would ever claim, or 


58 Anglo-American Arbitration Treaty 


that we would ever yield, a right on her part to bring 
into controversy a fundamental rule of which she had 
been duly notified before the treaty had been made. 
The notice has repeatedly been given, and especially 
at so recent a date that she cannot plead that time 
has wrought a change in the views of our Government. 
The terms of our most recent authoritative exposition 
were plain enough to leave nothing to interpretation, 
and were endorsed with such unanimity of approval 
that a pretence of ignorance would be as absurd as 
it must prove futile. We cannot suppose that the 
great nation that has ruled the seas for centuries and 
owns more real estate to-day than most of the others 
put together is laying traps for her junior in years; 
but if she is, so be it. We are not likely to suffer. 
The Monroe doctrine is safe, treaty or no treaty. Itis 
quite as safe, if it is not mentioned by name, as if a 
timid reservation in terms should be inserted to show 
that the United States were not really quite sure that 
this repeated and solemn assertion of right had been 
heard and seriously considered by the world. 

We should not forget that our Monroe doctrine is, 
after all, but the European doctrine of the balance of 
power transplanted to American soil. Great Britain 
might make a general treaty of arbitration with France 
or Germany. Will any one seriously contend that she 
thereby waived, minimized, or imperilled her right to 
interfere, should Germany attack Holland, or France 
invade Belgium? Such scruples as these do not seem 
worthy of a great people who know their strength, and 
purpose to deal in good faith with the other nations of 
the world. The object of the treaty is peace: the 
aspiration, the interest, the prayer of the world is for 
peace. Civilized mankind yearns for peace: the mul- 


Anglo-American Arbitration Treaty 59 


titudes groan and suffer untold hardships because 
to-morrow may mean war and not peace. Two of 
the great nations of the world, great enough to know 
that their honor does not consist in vague mutterings 
about self-respect and dignity, are willing to abide by 
reason and to forego violence. The gain to the world 
if they succeed in their noble effort at systematic har- 
mony is great beyond the power of pen or speech to 
define. The nineteenth century needs only this 
culmination of its glories to stand out among the ages 
as blessed beyond all those that have gone before 
since the dawn of Christianity first rose upon mankind. 

Above all, let us not be misled by high-sounding 
declamation about national honor. The only danger 
which our honor may run is in an exaggerated ten- 
dency to make readiness to strike the test of its del1- 
cacy and the proof of its existence. The day has 
come when we may smile at those who would urge us 
to prove our strength by the streams of blood that we 
can shed at short notice. A republic with a united 
nation of seventy millions behind it may stop to dis- 
cuss without being taxed with timidity, and will not 
care if the effervescent mob that clamors for blood 
on all available occasions shall feel outraged in zts 
honor because of a generous forbearance to draw the 
nation’s sword. 

In 1870, the streets of Paris were filled with valiant 
men full of patriotism and absinthe, who were shouting 
eagerly, “‘ A Berlin! A Berlin!’”’ How many of those 
doughty champions of France’s honor started on the 
journey to Prussia’s capital? How many, alas! who 
said nothing, but did turn their faces toward Berlin, 
soon found their last resting-place before they had 
crossed the Rhine? 





lit 


INTERNATIONAL LAW—THE RIGHTS OF SHIPS ! 


a science. But it is, I venture to think, an act of 
violence to language and to proper definition to 

use that term, except as one made respectable and 
intelligible by prescription. It is convenient and 
alluring because it assimilates the intercourse between 
nations to the relations between men, and thus as- 
sumes, although it be but a pleasant fiction, that the 
principles laid down by Vattel and by Grotius com- 
mand the superstitious veneration of civilized man- 
kind. History teaches the fallacy of this, and shows 
us in records of undisguised brutality how feeble is 
that law which is without sanction, how frail the 
shield which it seeks to interpose between the great 
nations and the weaker families of the human race. 
It is not alone in AXsop’s Fables that the wolf could 
find a reason, satisfactory to himself, for appropri- 
ating the helpless lamb. All wolves do not care to 
find reasons for the unlawful satisfaction of their 
hunger, but on a large scale they generally do discover 
one in a disputed succession, an appetizing boundary, 
or a golden opportunity to violate the Decalogue with 
1 Lecture delivered before the Naval War College, October 2, 


1895. . 
60 


NTERNATIONAL LAW—so called—is spoken of as 


International Law—The Rights of Ships 61 


impunity. International law, without the ability to 
make its precepts good by a salutary exhibition of 
force, is as helpless as King Canute before the rising 
tide. It may furnish the despoiled and outraged 
people with an appropriate theme for protests and 
appeals to the world, but with these they may remain 
content. 

In the meanwhile let us be prepared to enforce our 
principles in the only way that has yet been devised. 
Mr. McAdoo, Assistant Secretary of the Navy, in his 
excellent address at the Naval War College in June 
last, expressed himself on this subject in language that 
I am tempted to repeat: 


Were the affairs of nations and of men settled entirely by 
pure reason and unselfish justice, the pen of the diplomat 
might indeed, unaided, settle the destinies of mankind, 
but if conscious power has ever yielded up its attainments 
and foregone palpable advantages at the mere sound 
of rhetoric, I have no knowledge of the instance. The 
cunning of the fox is a most admirable quality, but can 
only supplement, not supererogate, the courage of the lion. 


Even the cunning of the fox, I might add, has lost 
its virtue since diplomats have taken to telling the 
truth.! 


1 It might be a curious subject of speculation to enquire how 
far the comparatively straightforward methods of modern diplo- 
macy are due to a growing regard for truth, or to the feeling that 
lying does not pay in the end. It is not so long since Talleyrand 
de Périgord shone as the one conspicuous light in the galaxy of 
diplomatic stars. He had in his peculiar sphere no equal, much 
less asuperior. And yet his warmest friends have never pretended 
that he had the slightest regard for truth. If he ever hesitated to 
advance a proposition because it was not founded in fact, history 
has failed to record the instance. The Metternichs, Nesselrodes, 


62 International Law—The Rights of Ships 


Nor shall we find the sources of international law 
of easy ascertainment and definition. Many ponder- 
ous tomes have been written to trace the rules of in- 
tercourse between nations to respectable beginnings. 
They are founded, learned authorities tell us with ev- 


Castlereaghs, and others with whom he had tc deal, may not have 
been more scrupulous than he. But granting that they were, 
which is easily possible, it is not likely that they were wholly can- 
did in dealing with an adversary who was as free from scruples as 
he was fertile in resources. It is probable that the reform which 
has become manifest in later years is due to the Press. There are 
no secrets in governmental circles to-day. The Press has quite 
as many eyes as Argus, but, more fortunate than he, as many ears 
as eyes, and a number of tongues equal to the requirements of the 
other organs. The tardy processes of protocols are inconsistent 
with the new fashions developed by steam and electricity. Then, 
too, the people have something to say about the matters which 
concern themselves, and no longer wait, with respectful deference, 
for results brought about by deliberate, subtle, and verbose agents. 
War may be declared by telegraph, troops conveyed by rail at 
forty miles an hour, great empires destroyed in ninety days. 
Dilatory, ponderous, impressive diplomacy has had its day. The 
exquisitely polite forms with which the old-time diplomat con- 
veyed the assurances of his most distinguished consideration to 
the representative of the nation which his own principal desired 
to dismember, threaten to become obsolete. They worked in har- 
monious effect with the perukes, and breeches, and silk stockings, 
and sealing-wax—but they are dwindling into anachronisms. 
Business habits and methods are asserting their sway, and dis- 
placing formulas. Not that these have wholly disappeared, but 
their majesty is disrobed. How these euphuistic pretences still 
endure is nowhere so effectively shown as in the correspondence 
between Napoleon III., Emperor of the French, and King William 
of Prussia, when the former surrendered his person and his sword 
to the victor of Sedan: ‘‘Monsieur mon frere. Not having been 
able to die among my troops, there is nothing left me but to place 
my sword in the hands of Your Majesty. I am Your Majesty’s 
good brother, Napoleon.’”’ To which the brother responded: 
‘‘Monsieur my brother—I accept Your sword.’”’ What an epitaph 
for a dying empire! What mingled pathos and sham in this pre- 
tence of fraternity, within sight and hearing of the dying victims 
of this brotherly quarrel! 


International Law—The Rights of Ships 63 


ident satisfaction, upon the laws of nature, as though 
this did not complicate the subject by injecting into it 
an element of singular vagueness and uncertainty. If 
it were not presumption to question this generally 
accepted formula, it might be said that the law of 
nature, so far as it is possible to find such a law, is the 
very negation of that which is presumed to he at 
the foundation of the law of nations. The law of 
nature, if it means anything, means the gratification 
of men’s desires by all the means at their command. 
It is the retrograde passage from the civilized and 
artificial man to the imperfect and undeveloped state 
from which he has emerged. Rousseau and other 
inspired madmen may preach about the beauties of 
the natural condition and the altruism which it begets. 
But the truth is that this so-called state of nature is 
the very converse of the original condition of things. 
Rousseau’s state of nature exhibits an ideal creature 
who can only exist where man has laid aside his innate 
tendency to gratify his natural passions in the natural 
way; that is, by violence, where violence is necessary. 
No man has more concisely and finely described this 
condition of man on his way to higher things than the 
Roman Horace: 


When the first Mortals crawling rose to Birth, 
Speechless and wretched, from their Mother-Earth, 
For Caves and Acorns, then the Food of Life, 

With Nails and Fists they held a Bloodless Strife, 

But soon improv’d, with Clubs they bolder fought, 
And various Arms, with sad Experience Wrought, 

Till Words, to fix the wandering Voice, were found, 
And Name impress’d a Meaning upon Sound. 
Thenceforth they cease from War; their Towns inclose 
With formidable Walls, and Laws compose 


64 International Law—The Rights of Ships 


To strike the Thief and Highwayman with Dread 
And vindicate the sacred Marriage-Bed.! 


When these wise men, then, speak of the law of 
nations as being founded on the law of nature, and 
a natural regard for the rights of others, they do not 
attach to these words the ordinary significance that 
properly belongs to them. Thus Vattel: 


Nations do not, in their mutual relations to each other, 
acknowledge any other law than that which Nature herself 
has established. Perhaps, therefore, it may appear super- 
fluous to give a treatise on the Law of Nature as distinct 
from the Law of Nations. But those who entertain this 
idea have not sufficiently studied the subject. 


He then adds a paragraph which deserves much re- 
spect, as it was written many years ago and has been 
treated with consideration by eminent and serious 
writers: 


Nations, it is true, can only be considered as so many 
individual persons living together in a state of nature, and 
for that reason we must apply to them all the duties and 
rights which Nature prescribes and attributes to men in 
general, as being naturally born free and bound to each 
other by no ties but those of Nature alone. 


1 This paraphrase (Rev. Philip Francis’s) does scant justice to the 
vigor and beauty of the original: 


‘“ Quum prorepserunt primis animalia terris, 
Mutum et turpe pecus, glandem atque cubilia propter 
Unguibus et pugnis, dein fustibus, atque ita porro 
Pugnabant armis, que post fabricaverat usus, 
Donec verba, quibus voces sensusque notarent, 
Nominaque invenere: dehinc absistere bello, 
Oppida coeperunt munire et ponere leges, 
Ne quis fur esset, neu latro, neu quis adulter.”’ 
Horace, Satires, Book I., lines too—107 


International Law—The Rights of Ships 65 


If this had been written for the first time in the last 
decade of the nineteenth century, and such a state- 
ment had been used as the foundation for a work on 
the Law of Nations, we may readily believe that the 
critics, undeterred by antiquity and unrestrained by 
general acceptance, would have challenged Vattel’s 
assumption that the refined, well-dressed, and fin-de- 
stécle inhabitants of Paris, London, and New York 
were living together in a state of nature, and that man 
being naturally born free was bound by no ties but 
those of nature alone. These critics might then, 
without disrespect, point out the fallacies of such a 
statement and the singular consequences to which 
they may lead. The individuals composing modern 
society have long since emerged from ‘“‘the state of 
nature’’ and are refined, humane, orderly, and pros- 
perous in the measure of their abandoning that state 
and assuming another. Self-denial and some measure 
of altruism distinguish the artificial man from the 
natural man, whose instincts are his law, whether 
they tell him to use his aged parents for food or sell 
his children into slavery. To what model would such 
instructors as Vattel refer us? There must be an 
ideal state which they may point out and urge us to 
imitate. What African tribe or South Sea island clan 
or Malay community illustrates in itself the golden 
rules that are interwoven into and form the chief 
texture of the Law of Nations? Nay, they are out of 
the pale of that law and may not claim any portion of 
its benefits, partly because they are ignorant of its 
existence, and partly because they have, none of them, 
the physical power to enforce its application. It is 
plain, then, that the Law of Nature, spoken of by so 
many authors, is one that they have not defined, and 

5 


66 International Law—The Rights of Ships 


which, whatever it may be, is not the Law of Nature 
of which we so often speak in so different a sense. ! 
In other words, they had in mind some other and 
different law which they intended by this misnomer 
to hold up for imitation and respect. They probably 
considered the Decalogue and the Sermon on the 
Mount as part of the vague generalization which they 
have thus fallaciously called to their assistance. These 
do indeed form a code of morals or a system of ethics 
upon which a stately edifice may be reared for the 
benefit and improvement of mankind. 

Jeremy Bentham, in commenting upon the ‘‘ False 
Manner of Reasoning in Matters of Legislation,’’ has 
touched upon this point and made it clear: 


What is natural in man is his feelings of pain or 
pleasure—his inclinations; but to call these feelings and 
inclinations laws, is to introduce a false and dangerous 
view and to put language in contradiction with itself, for 
laws must be made for the very purpose of suppressing 
these inclinations. 


What Bentham says here of municipal laws and 
their object applies with still greater force, perhaps, 
to the rules which govern the relations of nations with 
one another, for experience has taught us, and history 
proves, that great agglomerations of men are more 
readily inflamed to the point of injurious oppression 


1“°The words ‘nature’ and ‘natural’ are constantly bandied 
about in controversy, as if they settled quarrels, whereas they only 
provoked them by their ambiguity.’”’—RurTcuig, ch. ii., p. 21. 

“What is justice? What are laws? What is the State? The 
man who speaks in the law courts or political assemblies, speaks 
as if he knew what these terms meant. The sophists made him 
think whether the terms as ordinarily used had any definite mean- 
ing at all.’’—RurTcuieE, ch. ii, p. 23. 


International Law—The Rights of Ships 67 


and unnecessary violence than individuals. The con- 
tagion of example, the hope of impunity, the love of 
fame, and many other elements call for restraint and 
demand a curb which no rhapsodical appeal to the 
laws of nature will ever furnish. 

Some recent writers have sought to evade the 
difficulty by metamorphosing the Law of Nature into 
something which it certainly is not, and thus have 
sought to continue Vattel’s misnomer by making it a 
synonym for something different from itself. Thus 
Hautefeuille, a writer of reputation, says: 


God has given to nations and to those who govern them 
a law which they are to observe towards each other, an 
unwritten law, it is true, but a law which He has taken 
care to engrave in indelible characters in the heart of every 
man. It is the Divine or Natural Law; it constitutes 
what I shall call the Primitive Law.1! 


In what respect the situation is improved by label- 
ling a system Primitive Law, instead of Divine Law 
or Natural Law, it is not easy tosee. Indeed, the new 
label appears to do nothing more than to add to our 
perplexity. While we may accept and understand 
either of the others, it would require much learning to 
fix the date, origin, or extent of this so-called primitive 
and unwritten law. The fact is that our modern 
system of international law is the expression of the 
moral sense of mankind, ever growing, improving, 


1 ‘‘Who is to interpret, in last instance, the principles which are 
termed laws of God, laws of nature, laws of reason, and laws be- 
tween nations, when they are invoked by anybody in justification 
of disobedience to a command of the State, or of the powers which 
the State authorizes? Is it not evident that this must be the 
State itself?’’—Pol. Science and Comparative Const. Law, vol. i., 
Pp. 53. Professor BurGeEss, of Columbia College. 


68 International Law—The Rights of Ships 


developing, and spreading. It is based upon modern 
Christian civilization and infinitely more upon the 
written word of God than upon the so-called un- 
written law. It bears only a remote resemblance 
to the original and much-restricted jus gentium,! 
and finds its raison d’étre in custom and a generally 
recognized system of Christian ethics common to the 
nations that profess obedience to its mandate. It 
does not and cannot apply to barbarian, heathen 
states, for there is no common ground upon which 
the parties may meet. To act upon the Golden 
Rule in dealing with nations that believe in revenge 
and ready violence as the only treatment for griev- 
ances, real or supposed, would be absurd in theory and 
impossible in practice. 

The Law of Nations will then be found to consist of 
certain rules of self-denial, forbearance, and courtesy 
which have been found conducive to the mutual in- 
terest of men. As nations improved in their moral 
conditions and learned to realize the benefits of peace, 
these rules adapted themselves to the changing 
features of the times. Courtesy between individuals 
easily led to courtesy between rulers. Good faith in 
private dealings was the forerunner of good faith in 
public matters. The habit of respecting a neighbor's 


1 ‘The phrase jus gentium was in the seventeenth century, by a 
mistranslation, taken to mean ‘the law of nations,’ which we now 
call ‘International Law.’ The mistranslation was a fortunate one, 
because it allowed Grotius and others to introduce the humane 
conceptions of the Roman ‘law of nature’ into the theory of the 
right relations between independent political societies; neverthe- 
less it was a mistranslation. Jus gentium was the term used to 
describe those principles on which Roman magistrates decided 
cases in which the parties were not both Roman citizens, and in 
which, therefore, the jus civile was regarded as inapplicable.’’— 
Natural Rights. Professor RITCHIE, p. 37. 


International Law—The Rights of Ships 69 


field inspired some scruple, perhaps, as to the pro- 
priety of seizing a tempting bit of neighboring terri- 
tory. And, possibly more than all combined, it was 
found that the practice of treating other nations with 
fairness and with justice was the most expedient in the 
end. It is utility, after all, that furnishes the solid 
substance and foundation wall of international as of 
private law. And yet, instances are but too common 
to show that when one nation has the power, and finds 
it expedient to disregard the rules of ethics and to 
adopt the suggestions of policy, the latter drives its 
white-robed opponents from the field of discussion; 
it seizes the lion’s share because its name at that 
particular moment happens to be Lion.! 

President Washington, at the time of his first inaugu- 
ration, in solemn tones of warning, taught his people 
the value of justice in dealing with other nations by 
dwelling upon what he termed ‘“‘ the indispensable union 
between duty and advantage, between the genuine 


1 The ideal exponent of this justification of force in our century 
is undoubtedly the Iron Chancellor of Germany. Blood and Iron 
are the tonics which he is said to have recommended for anemia, 
the prevailing ailment in the body politic. Whether or not he 
ever did declare that ‘‘La force prime le droit” (or as we would 
express it, ‘‘ Might makes right’’) may be uncertain, but the people 
whom he brought to the depths of humiliation in 1870 have always 
attributed to him this frank if cynical declaration of his guiding 
principle. Frederick the Great, the real founder of the German 
Empire, might have hesitated to make such an avowal, but then 
he became a philosopher, after he had had his share of Poland, and 
something of a moralist after he had demonstrated by his successful 
war on Maria Theresa, that honesty is not always the best policy, 
at least for ambitious monarchs. The great Chancellor, however, 
is not a philosopher, he does not make verses, and does not play 
the flute (at least so far as we know); in these respects he differs 


from the great Prussian King, who made Sadowa probable, and 
Sedan possible. 


70 International Law—The Rights of Ships 


maxims of an honest and magnanimous policy and 
the solid rewards of public prosperity and felicity.” ! 
We may be content to accept this as the maxim that 
should govern the public acts of a great people. To 
be honest and to be magnanimous is a programme in 
itself, and we may, as citizens of these United States, 


1 This language of our first President may be considered the 
starting-point of our diplomacy, which has been, notwithstanding 
its recent birth, singularly brilliant and fortunate. It has given a 
flat denial, of the most conclusive kind, to the idea that diplomacy 
was an occult art, which required early training in tortuous devices 
and an intimate acquaintance with complicated precedents. In 
one respect it has been very fortunate for the United States that 
they were not possessed of a diplomatic school. The disadvantage 
which European powers sometimes labor under from the old-fash- 
ioned method of keeping young statesmen on hand for the purpose 
of getting advantage of other nations in their international dis- 
putes often gave respectable mediocrity an opportunity to show 
its incapacity. Our Presidents, not having a college of young 
statesmen to select from, simply took from political life the ablest 
and most intelligent men that they could find, and those best cal- 
culated by their knowledge of the subject with which they were 
to deal, to secure fair treatment from other nations. No better 
illustration of this could be adduced than the history of our nego- 
tiations with Great Britain, which ended in the Treaty of Ghent. 
President Madison had no diplomats to send to England on this 
most important subject, so he selected John Quincy Adams, Albert 
Gallatin, Henry Clay, James A. Bayard, and Jonathan Russell for 
the purpose; men of tried courage, experienced ability, and noted 
patriotism. Their adversaries, whose names history has scarcely 
preserved, were no doubt trained in all the formulas of the school 
to which they belonged, but they were almost ludicrously unequal 
to the international contest in which, unfortunately for themselves, 
they were forced to embark. All the probabilities were against 
the success of the American commissioners. England at that 
time was in the flush of her continental triumphs. Her great 
opponent was relegated to a small island in the Mediterranean, 
and she was patting France on the back with patronizing and 
most exasperating kindness. She had had recent and great suc- 
cesses over the Americans; she was about to send some of Welling- 
ton’s best-trained troops to the United States to conclude the war, 
and her principal journal declared that England would be satisfied 


International Law—The Rights of Ships 71 


claim with confidence that we have in the main 
moulded our diplomacy after this lofty standard; 
that we have been slow to wrath, ready to reason, 
gentle to the weak, and firm with the strong. It is no 
boast to say that to-day the world is better for our 
example and for our efforts to be ‘‘ honest and mag- 
nanimous.’’ Senseless and cruel war has received no 
encouragement at our hands, and if the humane and 


with nothing less than a large slice of the northern part of the 
United States, with the abandonment of the asserted right to the 
fisheries, and with their submission to the right of search and im- 
pressment. The collection of epithets hurled against President 
Madison by such journals as the Times, the Chronicle, and other 
leading papers, would make a very fair dictionary of Billingsgate. 
No epithet was too vile to apply to him, to his party, and to his 
country, but, notwithstanding all these disadvantages, and not- 
withstanding the fact that the English envoys began by ultimata 
which were absolutely inadmissible, the skill and the consummate 
ability of the American commissioners finally drove Great Britain 
into a treaty which was acceptable to the United States. While 
the chief glory of this success is due, no doubt, to Albert Gallatin, 
yet all his brother commissioners contributed to the grand result. 
It fortunately happened that the work of diplomacy was sup- 
plemented and rounded off by Andrew Jackson, on the 8th day of 
January, 1815, while the ship which bore the treaty was ploughing 
its way over the stormy Atlantic to New York. There are few 
events in the history of this country which have had the moral 
effect of that victory. It marked a turnin the tide of international 
politeness, if nothing else. Up to that moment the authorities and 
the Press of Great Britain had treated the ex-subjects of Great 
Britain with undisguised contempt. They were simply ungrateful 
rebels who had chanced to succeed, but who were sure to fail in 
their ambitious and ridiculous efforts at self-government. History 
has recorded the epithet that was applied to Benjamin Franklin, 
who was likened by Wedderburn (Lord Loughborough) to a man 
of three letters (homo trium literarum, that is a ‘‘fur’” or thief), a 
classical allusion which displayed familiarity with old authors, but 
which did not prevent Franklin from getting the best of his lord- 
ship in the end. 

From that time up to this day the United States have, as a 
general rule, been represented abroad by men of marked ability 


72 International Law—The Rights of Ships 


peaceful methods of arbitration constitute to-day the 
most approved means of solving international disputes, 
the great honor of this stride in human progress is due 
to the nation that Washington instructed in the pur- 
suit of happiness, through honor and right-doing. 
His words have not fallen on stony soil, but have 
brought forth fruit abundant and precious. 

Custom is a source of international law which is 
entitled to special consideration. Custom creates an 


and character, men who were able to hold their own with the best 
of the trained diplomats of the world. They were equally com- 
petent to speak, or to hold their peace, as occasion required. Mr. 
Trescott’s excellent work on our Diplomatic History contains 
nothing which would make an American blush. 

On the subject of Franklin, and the ability of our Ministers 
abroad to hold their peace, I cannot refrain from quoting a story 
charmingly told by Mr. Hanotaux, the late Minister of Foreign 
Affairs, at the banquet of the American Chamber of Commerce 
on the Fourth of July last at Paris: 

‘“When Franklin arrived in France he was somewhat astonished 
at the luxury, noise, and bustle of the Court of Versailles. The 
courtiers, who are by nature effervescent and volatile, made much 
ado over him. He was himself inclined to be taciturn. The So- 
ciety of Friends, to which he belonged, had, as you know, estab- 
lished a rule of silence. Vergennes, likewise, was of a reserved, 
circumspect, uncommunicative nature. The introducer, having 
presented Franklin, withdrew. The two statesmen, left alone, 
bowed to each other. Vergennes, with a gesture, invited Franklin 
to be seated, and then waited. Franklin, however, said not a 
word; possibly he wished to put his companion’s gravity to the 
test—the French had always been pictured to him as being so 
loquacious. . . . The Minister felt that he was on the verge 
of overstepping the rules of courtesy and hospitality. He, there- 
fore, took out his snuff-box and invited Franklin to take a pinch 
of snuff. The latter complied, reflected an instant, and took his 
snuff in silence. Vergennes, on his part, did the same, and thus 
returned the compliment. After a brief flash of silence Franklin 
arose; so did Vergennes, whereupon, after a farewell obeisance 
they parted. This was the entire sum and substance of their first 
interview, which, happily, was to be followed by others of a more 
fruitful character.” 


International Law—The Rights of Ships 73 


implied agreement between nations to accept as proper 
and just in the future what has been done without 
objection in the past. The value of precedent, es- 
pecially to the Anglo-Saxon race, cannot be over- 
estimated. It is to-day the ruling factor in the 
government of Great Britain. A sovereign Parlia- 
ment is omnipotent except to disregard precedent, 
that mysterious oracle which dictates or forbids action 
at its will. Precedent is the controlling ingredient of 
the Common Law and turns the Present into an obedi- 
ent servant of the Past, until some positive enact- 
ment, hesitatingly passed and often grudgingly obeyed, 
lets in the sunshine of the new day to hght up the 
musty records of bygone ages. 

And finally, but in reality first, we meet ‘‘Self- 
Preservation”’ to disturb and control international 
relations. The great warriors have often confounded 
it with personal ambition and have listened to its 
voice until they heeded no other. Cesar dealing with 
Gaul, Frederick with Poland, Napoleon with Spain, 
the Holy Alliance with Europe, have shown how 
slight and frail a barrier mere Right could erect to 
withstand the assaults of ambition and self-interest. 

To these we might not improperly add Treaties, 
although treaties, being express and written contracts 
standing or falling upon their own provisions, may not 
necessarily be included in the list. Such compacts 
might be made without reference to a general scheme 
of law, and in fact may be and sometimes are operative 
as pro tanto superseding it. 

We thus have, with the reservation above made, the 
same ingredients in substance which Grotius enumer- 
ates as constituting the sources of international law: 
“Fura nature, leges divine, mores et pacta.’’ If he had 


74 International Law—The Rights of Ships 


stricken out the first and substituted the language 
of Washington, the definition would have been im- 
proved. Chronology, however, if nothing else, has not 
permitted him to do this. As I wish to be wholly 
guiltless of presumption, I shall not venture upon any 
definition of my own, but will select from the many 
that we have had, that one, the author of which is held 
in particular veneration by the jurists of our country— 
I mean Chancellor Kent. His definition wisely omits 
all reference to the natural law, of which so much has 
been said: *‘ International Law, as understood among 
civilized nations, may be defined as consisting of those 
rules of conduct which reason deduces, as consonant to 
justice, from the nature of the society existing among 
independent nations; with such definitions and modi- 
fications as may be established by general consent.”’ 

Having proceeded thus far in laying down principles 
which must be kept in view when any special and 
incidental question arises between nations, I purpose 
to consider one topic which is too large in its scope and 
importance for more than superficial treatment in such 
a paper as this. It deserves, indeed, most careful 
attention, for in its application it may hereafter involve 
grave consequences to our honor as well as our interests. 
I mean the question of so-called asylum on ships. 

The present fashion of studying municipal law favors 
the consideration of a leading case, and the examina- 
tion of the conclusions reached in and properly to be 
deduced from its decision. Following this practice, 
which presents manifest advantages, we will briefly 
study the Barrundia case; it is one of conspicuous im- 
portance because of the principles involved and of the 
tragical ending which stained the deck of an American 
ship with the blood of a political refugee. 


International Law—The Rights of Ships 75 


The facts may be briefly stated; they are in the 
main uncontradicted. 

General Barrundia, prior to 1892, had held a high 
position in the Government of Guatemala, but having 
failed to obtain the Presidency, he proceeded to organ- 
ize an invasion of his country from Mexican territory. 
Being thwarted in this he was disarmed by the Govern- 
ment of Mexico. On the 23d day of August of that 
year he found his way to the port of Acapulco (in 
Mexico), where he took a ticket for Salvador on the 
American steamship Acapulco. The steamer sailed 
on the day last named for Panama; she was to stop 
on her way at several ports of Guatemala. The move- 
ments of Barrundia having become known to the 
authorities of Guatemala, they determined to arrest 
him, but were apparently troubled by scruples as to 
the probable attitude of the United States. They 
might not unreasonably apprehend that an American 
captain would offer moral, if not actual, resistance to 
an invasion of his ship for the purpose of removing 
therefrom a passenger, who was charged with a purely 
political offence. It was not clear to them that the 
Government of the United States would view without 
dissatisfaction a proceeding for which there was no 
clearly established precedent. The value of precedent 
in public as in municipal law has been already briefly 
adverted to; and if it were the fact, as has been claimed, 
that no cases in the past could be found to justify, but 
many to forbid, the exercise of such an alleged right, 
the Government of Guatemala acted with wisdom in 
seeking to procure, at the outset, the assent and the 
active co-operation of the representative of the United 
States to Central America. 

The Minister for Foreign Relations of Guatemala, 


76 International Law—The Rights of Ships 


realizing this, addressed a despatch to the United 
States representative, in which, after stating certain 
facts in support of his contention, he claimed that his 
Government had ‘‘a perfect right, being 7m a state of 
war, to capture Barrundia on the steamer which was 
[is] anchored in Champerico, a port of Guatemala.” 
The Minister concluded his despatch with a request 
that ‘‘the Honorable Consul-General and Chargé 
d’Affaires of the United States will, if he thinks proper, 
give his directions by telegraph to the effect that the 
captain of the vessel referred to might not offer any 
resistance to the capture or arrest of the said General 
J. Martin Barrundia.” 

Captain Pitts of the Acapulco became aware of the 
intention of Guatemala to detain his passenger, and 
at once realized the responsibility which he was called 
on to assume. It is not impossible that a sentiment 
of humanity, mingled with the natural reluctance of 
an American citizen to aid in the surrender of a 
political refugee, may have operated upon his mind. 
He may have thought that the American flag which 
he carried meant something not easy to reconcile with 
a voluntary surrender of the passenger whom he had 
taken on his ship. Be this as it may, he wrote this 
categorical despatch to Mr. Misner, Chargé d’Affaires 
of the United States to Central America: ‘‘Shall I 
deliver General Barrundia to the authorities here? If 
so, please send me a letter with your signature to that 
effect.”’ The United States Minister did thereupon 
inform him, over his signature, that it was his (Cap- 
tain Pitts’s) duty under the Law of Nations to deliver 
General Barrundia to the authorities of Guatemala. 

It is due to the Chargé to add that he wrote, at the 
same time, that guaranties had been given him that 


International Law—The Rights of Ships 77 


Barrundia’s life should not be in danger, or any 
punishment inflicted upon him other than for causes 
theretofore stated. 

The burden of a decision having thus been placed 
upon the Chargé, Captain Pitts made no further ob- 
jection to the surrender and proceeded to carry it out. 
General Barrundia was not, however, disposed to 
yield without a struggle. Mr. Misner briefly informed 
his Government of the result as follows: ‘‘ General 
Barrundia, having resisted arrest on board the Aca- 
pulco, was, after having fired the first shot, killed by 
Guatemalan officers.”’ This dramatic termination 1m- 
pressed the case with unusual importance, and the 
question arose how far the United States Chargé had 
made himself responsible for this tragical culmination 
by his participation in the surrender; or rather, it 
might be justly said, by the surrender itself. Captain 
Pitts had not undertaken to settle the question whether 
the delivery of his passenger could properly be re- 
quired of him. 

This narrative would be incomplete were it not 
stated, in addition, that there was a vessel of the United 
States then and there present within easy reach of the 
Acapulco. A suggestion from the Chargé to the com- 
mander of the armed vessel of the United States would 
have insured life and safety to the unfortunate refugee. 
It is not probable that the authorities of Guatemala 
would have undertaken to pursue their victim on the 
deck of such a ship, although, after the event in which 
they had obtained so brilliant a triumph, the repre- 
sentative of Guatemala announced that he would have 
sunk the merchant vessel had his demand been re- 
jected, ‘‘even though it might have involved a con- 
flict with the two armed vessels of the United States 


78 International Law—The Rights of Ships 


which were then and there present.’”’ It is fortunate, 
perhaps, for the gentleman who wrote these brave 
words that he was not called upon to show that his 
valor was greater than his discretion. We may dis- 
miss these ebullitions, as did Secretary Blaine, without 
much notice. Ex post facto threats and extravagance 
of language after the event not infrequently afford 
relief to persons who have escaped grave peril; they 
do no real harm to the other parties concerned. 

Upon being informed of all the details which affected 
and helped to bring about the death of General Bar- 
rundia, by violence, on an American ship, Secretary 
Blaine wrote a despatch to the Chargé d’Affaires of 
the United States in Central America. This paper 
deserves careful attention and study. It reviews the 
circumstances which culminated in the final catastro- 
phe, and after censuring the Chargé in strong terms, 
it concludes by informing him that in the opinion of 
the President his usefulness in Central America was at 
an end. He was therefore requested to leave his 
post with all convenient despatch. 

The Chargé, in reply, insisted that he had acted in 
accordance with the law of nations, and closed by an 
appeal to the considerate judgment of his countrymen. 

Mr. Misner based his plea mainly upon the decision 
in the Gomez case, decided by Secretary Bayard, and 
upon the fact that ‘‘the entire diplomatic corps in 
Central America, excepting the representative from 
Mexico, had, in writing, endorsed his course in the 
Barrundia case.”’ The former of these pleas, if sus- 
tained in fact, must certainly go far to justify his 
position; but it is at least doubtful whether, in a 
matter exclusively touching the honor of the American 
flag and the interests of the American people, the 


International Law—The Rights of Ships 79 


opinions of the diplomatists referred to are relevant 
or important. 

Anything approaching a full discussion of this im- 
portant case would far exceed my limits, even if 
generously extended; but a few suggestions may be 
made which will perhaps open a field to others for 
more extensive and profitable discussion. 

Leaving out of view, for the moment, the despatch 
in which Secretary Bayard is said to have made a 
precedent which the American representative was 
authorized, if not bound, to follow, no case can be 
found, I believe, in which a representative of the 
United States gave actual aid to a foreign power in 
removing a political prisoner from an American ship, 
especially while that prisoner was in transit from one 
foreign port to another. The cases cited by Mr. Blaine 
would seem to place this assertion beyond the sphere 
of reasonable contradiction. If this be so, the very 
unfortunate result of the Barrundia incident has been 
to disturb a line of precedents which strongly sup- 
ported the generally accepted idea of our people that 
the flag of the United States gave some protection to 
political refugees who had sought for safety under its 
folds. That there was a general consensus of opinion 
to that effect is a proposition not easily susceptible of 
mathematical demonstration. But I incline to think 
that Mr. Hall was not far from the truth when, being 
Minister to Central America, he telegraphed to the 
American consul in a case generally similar to the one 
under consideration: 


Say respectfully to the Minister for Foreign Affairs that 
our Government never has consented and never will con- 
sent to the arrest and removal from an American vessel 


80 International Law—The Rights of Ships 


in a foreign port of a passenger in transit, much less if 
offence is political. 


If it be true that demands for the surrender of 
political prisoners have, prior to the Barrundia case, 
been made and denied by captains of American mer- 
chant vessels, precedents have established, to some ex- 
tent at least, a right to protect the passenger against 
summary extradition.! 


1 That merchants vessels lying in the ports of a foreign state 
enjoy certain immunities from the local jurisdiction, even in the 
absence of express treaty stipulations, seems to be generally con- 
ceded, but all writers do not agree as to the extent of this privilege 
or exemption. The general idea connects it with the theory that 
the ship belonging to a foreign nation is to be considered in some 
aspects as part of the territory to the jurisdiction of which she 
belongs. In other words, that ships are floating portions of the 
country upon which they depend, and are as such entitled to re- 
ceive some of that respect and courtesy which the general Govern- 
ment exacts for itself. This view does not seem to have been 
adopted by the French courts and French authorities, for although 
they go as far, perhaps, as others in recognizing the fact of ex- 
tra-territorial rights, they do not ascribe the privileges which flow 
from it to the same sources. Mr. Hall, in his recent work on In- 
ternational Law, says that, according to the view held in France, 
the crew of a merchant ship lying in a foreign port is unlike a 
collection of isolated strangers travelling in the country; that it is 
an organized body of men, governed internally in conformity with 
the laws of their state, enrolled under its control, and subordinated 
to an officer who is recognized by the public authority; although, 
therefore, the vessel which they occupy is not altogether a public 
vessel, yet it carries about a sort of atmosphere of the national 
Government which still surrounds it when in the waters of another 
state. 

It may not be easy to see any substantial merit in the distinc- 
tion. Extra-territorial right based upon the principle first enun- 
ciated, viz., that the ship is a floating part of the territory, does 
not seem to differ materially from the French idea. However this 
may be, the result in both cases is the same. 

It may be observed that the result reached by the French politi- 
cal authorities and courts is the same practically as that pro- 


International Law—The Rights of Ships 81 


It may be claimed, however, and with some reason, 
that Secretary Blaine only decided that the United 
States Chargé had erred in actively co-operating with 
the foreign authorities in the effort to secure the 
person of General Barrundia, and that the real question 
still remains open. But it is scarcely possible to read 


pounded by our Supreme Court in the Wildenhus case. (120 
U.S. Rep., p. 11.) They held that ‘‘there is a distinction between 
the acts relating solely to the internal discipline of the vessel, or 
even crimes or lesser offences committed by one of the crew against 
another, when the peace of the port is not affected, on the one 
hand; and, on the other, crimes or lesser offences committed upon 
or by persons not belonging to the crew, or even by members of it 
upon each other, provided, in the latter case, that the peace of the 
port is compromised.”’ 

Thus, in France, each case stands upon the peculiar circum- 
stances that create and concern it. In two instances stated by Mr. 
Hall, it has been held by the superior courts that certain acts 
which were the subject of consideration, related wholly to the in- 
terior discipline of the vessel, and that the local authorities had 
not jurisdiction; while in a third, the court having expressed its 
doubt as to the applicability of the principle upon which the earlier 
cases were decided, the Government, on being consulted, decided 
in favor of extra-territoriality, and directed that the offender 
should be given into the custody of the authorities on board his 
own ship. 

Mr. Webster, whose opinion has been quoted in the text, has 
probably gone as far as any American statesman in arguing for a 
tight of exemption from local jurisdiction. In his correspondence 
with Lord Ashburton he argued that slaves, so long as they re- 
mained on board an American vessel in English waters, did not 
fall under the operation of English law. It may be, as Mr. Hall 
says, that Mr. Webster would have been embarrassed by a call for 
reference to sufficient authority. Possibly Mr. Hall’s prejudice as 
an Englishman may have suggested the possibility of embarrass- 
ment on Mr. Webster’s part. Those who have studied Mr. Web- 
ster’s life and works may be pardoned if they are somewhat amused 
at the idea that that intellectual giant solemnly laid down propo- 
sitions which he was unable to sustain. He may not have been 
able to cite cases directly in point, because the ever-varying com- 
plexity and extending area of international questions create cases 
for ae precedents cannot always be cited; but there are certain 


82 International Law—The Rights of Ships 


the Secretary’s letter without a resulting conviction 
that he himself would not and did not intend to con- 
cede the assumed right to enter upon and search an 
American ship to find an alleged political prisoner. 
How far he was right in his interpretation of the law 
of nations, in this particular, presents an alluring field 
for discussion. : 

It must be conceded that Secretary Bayard, in the 


principles which Mr. Webster, more than any man of his day, was 
competent to understand, to elucidate, and to apply to any incident 
that multiple international relations might create. 

Many states have followed the example of France as to the exer- 
cise of jurisdiction over foreign vessels in their own ports, and have 
been disposed to take a generous view of the claim of exemption 
from local jurisdiction. In several recent consular conventions, 
beginning with that between France and Chili in 1846, it is stipu- 
lated that the purely internal order of the merchant vessels shall 
be subject to consular jurisdiction, and that the local authority 
shall only be permitted to interfere when the peace or public order 
of the port or its neighborhood is disturbed, or when persons other 
than the officers and crew of a ship are mixed up in the breach of 
order which is committed. These conventions are of value, as taking 
out of the domain of unwritten and uncertain right the limits of 
extra-territoriality, as applied to ships. At the same time it must 
be obvious that the difficulty is not wholly removed, and it will 
not always be easy to determine when the local jurisdiction may 
be invoked, or when it may be unlawful to assert it. The Wilden- 
hus case is an illustration of this, so also the Barrundia case. It 
was never pretended that Barrundia should be surrendered be- 
cause he or the ship upon which he was sailing had disturbed the 
peace or public order of the port or its neighborhood. As it is 
stated in the text, the demand was placed upon the ground that 
a state of war existed, thereby creating a condition of things which 
justified the claim of a right to search the ship. As a general rule, 
it is undoubtedly true that the exercise of such a right does not 
exist in time of peace. 

Massé, in his work on International Law, holds that two sover- 
eign nations cannot advantageously waive this rule. 

Massé declares that ‘‘whatever may be the object of visit in 
time of peace, it is always an act of police which cannot be exer- 
cised by one nation towards another, because it implies on the 


International Law—The Rights of Ships 83 


Gomez case, laid down rules of conduct which would 
seem to imply that, in his opinion, the obligation to 
surrender the passenger on demand is unqualified and 
absolute. The language used by him, emanating as 
it does from an accomplished and patriotic statesman, 
cannot be brushed aside or disregarded. Mr. Blaine 
evidently felt that he could not overlook it, and that 
portion of his despatch which seeks to avoid conflict 
of decision with his predecessor betrays marks of em- 
barrassment. His reason for refusing to be bound by 
instructions which jarred with his own views of Amer- 
ican rights and American duties do not appear con- 
clusive, in so far as they discriminate between the two 
cases; and it is but just to Mr. Misner to admit that 
he may find some justification for his action in that 
despatch. Mr. Blaine’s argument need not be re- 
hearsed here. Those interested in such questions will 
find it ingenious even if specious in its attempts to 
distinguish. But I will venture one or two additional 
suggestions in support of the view that the two cases 
are not identical. 
part of the visitor a sovereignty incompatible with the reciprocal 
inedpendence of nations. Furthermore, two nations cannot advan- 
tageously grant one another by special conventions the reciprocal 
right of visit in time of peace. As such conventions imply an 
abandonment of the sovereignty, which is in its very essence in- 
alienable and incapable of being ceded, the two nations which have 
mutually given up their rights can only have made a temporary 
abandonment of them, which no lapse of time can render defin- 
itive.” (Note to Lawrence’s Wheaton on International Law, p. 257.) 
To the same effect is Hautefeuille: ‘‘The act of search cannot 
be exercised in time of peace; all the nations that have yielded to 
superior power or blandishments, or to any other influence, so far 
as to consent that their ships might be searched in time of peace, 
must, in order to recover the independence which they have alien- 
ated, seize every occasion to put an end to this violation of one of 


the most essential principles of international law.’’—(Hautefeuille, 
Droit Maritime International, p. 503.) 


84 International Law—The Rights of Ships 


In the first place, the master of the Honduras (in 
the matter of Gomez) had made himself liable, by his 
departure without a clearance, to the penalties which 
the laws of the port attached to such an omission. 
His motive was one which commends him favorably 
to the judgment of all humane men. He was not 
willing to yield up the refugee whom he had taken 
under his protection, and at the same time forcible 
resistance would have been worse than idle. It does 
not appear that there was a federal ship at hand to 
relieve him from the dilemma. He settled the ques- 
tion by hastening his departure, and thus performed 
what he considered a moral duty by violating the port 
laws of Nicaragua. But his reason for this did not 
concern the authorities of Nicaragua; indeed, if they 
were considered at all, they only aggravated his guilt. 
Secretary Bayard could not but realize this and de- 
cide accordingly. If we may liken his despatch to a 
judicial decision the only point that he settled was 
that the captain was wrong in leaving the country 
without a due compliance with the laws which every 
ship was bound to obey. And if he has gone beyond 
what was necessary in the general language that he 
used as to the duty of surrender, such obiter dicta, or 
remarks by-the-way, cannot bind those who follow 
him in his decision of the principal point. It may be 
said, too, that the master, in yielding to an amiable 
impulse, assumed, without sufficient warrant, that the 
authorities would insist upon and compel a surrender 
by force, after a refusal given with the sanction of the 
American Minister. This result was not at all certain 
to follow. The right to board the ship and remove at 
will a person charged with a political offence was at 
least doubtful, and we may well hesitate to believe 


International Law—The Rights of Ships 85 


that the political authorities of Nicaragua would have 
defied the Minister as well as the master, thus ex- 
posing themselves to the resentment of their most 
powerful neighbor and most reliable friend. This, it 
must be borne in mind, was prior to Barrundia’s case, 
which may have changed the general situation. For- 
eign nations now know that in one instance, at least, 
a foreign force has boarded an American ship, and, 
failing to remove, has with impunity killed a political 
refugee in transit from one neutral port to another. 

In the next place, the question before Secretary 
Bayard was an abstract one. He was not dealing with 
an actual fact. He was not deciding whether Gomez 
should or should not be delivered up. No American 
ship had in fact been invaded, no political refugee had 
in fact been the victim of an attack made upon its 
deck by foreign soldiers or bailiffs; the question of 
national right and duty and honor had not been pre- 
sented in such a way as to arouse his feelings as a 
patriot or to suggest weighty considerations of future 
responsibility by the creation of dangerous precedents. 
It may be that the distinguished Secretary, if a grave 
occasion arising out of solemn facts had presented 
itself, would have expressed the same opinion. He 
might have ordered Gomez’s surrender, he might have 
aided in effecting it, he might have condoned his 
violent taking-off if Gomez had suffered Barrundia’s 
fate. But this is only conjecture; he might, on the 
other hand, have refused to do any of those things. 
We only know that he held that the captain who left 
port without his papers had violated the law and had 
assigned no sufficient reasons therefor. 

The learned Secretary does, however, state the law 
of nations in general terms as he understands it to be; 


86 International Law—The Rights of Ships 


and if his despatch is to be used as a text and a guide 
in the future, and without reference to the question 
immediately before him, he has done much to settle 
the question adversely to the right, never formally 
conceded, of a foreign government to remove a political 
refugee from our ships. He states that 


when a merchant vessel of one country visits the ports of 
another for the purposes of trade, it owes temporary al- 
legiance and is amenable to the jurisdiction of that country 
and is subject to the laws which govern the port that it 
visits so long as it remains, unless it is otherwise provided 
by treaty. Any exemption or immunity from local juris- 
diction must be derived from the consent of that country. 
No such exemption is made by the treaty of commerce and 
navigation concluded between this country and Nicaragua 
on June 21, 1867. 


This is, no doubt, a fair statement of the public law, 
considered in reference to the point submitted to 
Secretary Bayard, viz: The right of the master of a 
ship to leave without papers, with which he was 
bound, under the port regulations, to provide himselt; 
but if it was intended to formulate a general and 
unqualified rule, it may be suggested, without dis- 
respect, that neither the treaty nor the public law nor 
our Supreme Court sustains this position as clearly as 
the Secretary appears to have assumed.! 


1 Professor Snow, of Harvard College, in his Cases on Interna- 
tional Law, cites the Gomez case as establishing the principle that 
‘‘merchant vessels do not possess the right of asylum.’’ The com- 
ments in the text show precisely what Secretary Bayard did decide. 
The proposition laid down by him was simply to the effect “that 
when a merchant vessel of one country visits the ports of another 
for the purposes of trade, it owes temporary allegiance, and is 
amenable to the jurisdiction of that country, and is subject to the 


International Law—The Rights of Ships 87 


The treaty referred to by Mr. Bayard contains in its 
provisions nothing indicating a desire to restrict im- 
munities theretofore existing nor to abrogate prevail- 
ing practices. It was designed to enlarge, not to 
minimize; to give, not to take away; to ensure, not to 
make doubtful that which the citizens of each country 


laws which govern the port it visits, so long as it remains, unless 
it is otherwise provided by treaty. 

“Any exemption or immunity from local jurisdiction must be 
derived from the consent of that country. No such exemption is 
made in the treaty of commerce and navigation concluded between 
this country and Nicaragua on the 21st day of June, 1867.”’ 

Granting this to be the general rule, it is clear that certain ex- 
ceptions have been by general consent, and in many cases by treaty 
stipulations, engrafted upon the principle of local jurisdiction, and 
it is rather upon these that the question in Barrundia’s case and in 
that of Gomez may turn. 

The term ‘Right of Asylum” seems to be responsible for much 
of the difficulty that attends these cases. ‘Right of Asylum,’’ as 
that expression was once understood, may be discarded and con- 
ceded to be obsolete, or never to have existed; and yet the forcible 
removal from an American merchant vessel of a passenger on the 
route from one neutral port to another by violence, on the ground 
of a prior political offence, may still be of doubtful legality. If 
Barrundia or Gomez, having violated the laws of Nicaragua, had 
escaped directly from their pursuers, and had sought refuge upon 
the deck of a Pacific Mail steamship, then lying in one of the ports 
of that country, it might be claimed that the master, by receiv- 
ing the fugitive, was disturbing, or, at least, imperilling the peace 
of the port, and that the ship was in a measure an accomplice after 
the fact by facilitating the criminal’s escape. That prisoner, on 
this hypothesis, had never left the jurisdiction of the state which 
claimed the power to arrest him. It might be a grave stretch of 
authority were the United States to claim that, by a single step 
from a wharf to the deck of a merchant vessel the fugitive had 
acquired immunity as complete as that which was in medieval 
times accorded a fugitive who found a refuge within the conse- 
crated walls of a cathedral. No one, so far as I am aware, has 
made such a claim. But it will be remembered that these men 
had left their country weeks or months before their capture, and 
that they had been in freedom and security during the interval. 
The shipmaster had done nothing to promote their criminal 


88 International Law—The Rights of Ships 


had enjoyed prior to the treaty. There is nothing in 
its terms to indicate that Nicaragua was disposed to 
extend her jurisdiction over United States ships. If 
the treaty had been the law of Barrundia’s case, it 
might fairly be argued that General Barrundia’s per- 


designs, if any such there were, nor had he offered them a refuge 
when pursued by the officers of the law. It cannot be said that he 
was Carrying the alleged criminal to his country for criminal pur- 
poses. The stoppage at a port of Guatemala was a mere incident 
of a lawful voyage from one neutral port to another. To receive 
a fugitive criminal, while in the jurisdiction of the offended country, 
may be a crime of itself, for which the master may be properly 
held liable, as he would be for receiving and removing stolen prop- 
erty, to the detriment of the citizens or residents of the country - 
in which he was temporarily sojourning with his ship. But is it at 
all clear that the same principle applies where the master does not 
know that his passenger has offended, or is charged with violating 
the laws of the government to the general jurisdiction of which he 
is for a brief period to submit his ship? Accepting the rule, then, 
we are but little nearer a solution until we decide the questions 
suggested in the text as to the effect of custom and treaty provi- 
sions. As Sir Travers Twiss says (in his work on the Law of Na- 
tions, p. 230): ‘There are cases in which the comity of nations has 
suspended the exercise of certain rights of empire (jura imperit) so 
uniformly, that a custom has grown up whereby the exception has 
acquired the character of law.’’ The difference between this view 
and Mr. Webster’s expression is that the latter claims the general 
tule to be in favor of exception, and the burden of proof to be on 
those who assert liability to local jurisdiction. But this considera- 
tion, while it may have its importance in certain cases, and as 
bearing upon the principle underlying the rules, is not practically 
of serious consequence when we are called upon to determine any 
given case. As Secretary Bayard correctly states the rule, any 
exemption from immunity must be derived from the consent of 
that country (z.e., the country in which the ship happens tem- 
porarily to lie). But that consent may be inferred from prece- 
dents, from treaty stipulations, and from the presumption that 
the exceptions usually accorded to foreign ships by other nations 
will not be denied by the government of the country which asserts 
the claim of jurisdiction. 

The suggestion made above that a distinction might be drawn 
between the case of an alleged criminal embarking at a neutral 


International Law—The Rights of Ships 89 


son was sacred under the circumstances above recited, 
so long as the peace of the port was not violated. 
Article II. expressly provides that 


there shall be between the United States and Nicaragua a 
reciprocal freedom of commerce; that the citizens of the 
two countries, respectively, shall have full liberty freely 


port en route for another neutral port, and the case of a fugitive 
seeking asylum on a vessel in the waters of his own country, from 
which he has not been able to escape, receives support from the 
language of Secretary Gresham, who may well be supposed, in a 
matter of national importance, to have weighed his language with 
judicial care. He decides that whether ‘‘the passenger may have 
- come on board at the port where the demand is made, or at another 
port of the same country, is immaterial to the right of local jurtsdic- 
tion.”’ The use of such language in connection with his condemna- 
tion of attempts to capture a passenger by force, without regular 
process, in a port of call, clearly indicates that Secretary Gresham 
was not ready to assent to the proposition that the local authori- 
ties were omnipotent. His acceptance of the precedent created by 
Secretary Blaine’s disavowal and rebuke of Mr. Misner’s action, in 
giving to the Guatemalan authorities an order for the surrender of 
the accused, is also significant. 

Before dismissing this branch of the subject, it may be interest- 
ing to note an expression of Secretary Bayard’s in his despatch 
above quoted. ‘‘It is clear,’’ he says, ‘“‘that Mr. Gomez voluntarily 
entered the jurisdiction of a country whose laws he had violated.” 
And in the same despatch he says that Mr. Gomez voluntarily took 
passage at San José de Guatemala for Punta Arenas, Costa Rica, 
on board the Pacific Mail steamship Honduras, with the knowledge 
that the vessel would enter en route the port of San Juan del Sur, 
Nicaragua.”’ But let us suppose that Mr. Gomez had no such 
knowledge. It is not beyond the scope of fair and legitimate 
speculation to suggest that, on embarking on an American ship at 
a neutral port for another neutral port, he may not have possessed 
that information. It is not improbable that a considerable num- 
ber of our own citizens, who start for Panama on one of the Pacific 
Mail steamships, are not able to state the names of the numerous 
ports at which they are to stop in different states of Mexico and 
Central America. It might well happen, too, that Gomez or Bar- 
rundia had been inveigled by false statements to take passage on 
the steamer for the very purpose of delivering him to jail and 


90 International Law—The Rights of Ships 


and securely to come with their ships and cargoes to all 
places, ports, and rivers . . . to enter into the same 
and to remain and reside in any part thereof, respectively, 
and that, generally, merchants and traders of each nation, 
respectively, shall enjoy the most complete protection and 
security for their commerce, subject always to the laws 
and statutes of the two countries respectively. 


It is going very far to contend that Nicaragua was 
to have, notwithstanding this grant, an arbitrary 


execution. Stress of weather, or mutiny, or any other peril of the 
sea might compel the ship to put into a port not originally con- 
templated as one to be visited. If the element of knowledge is to 
be taken into consideration as a controlling factor, then the re- 
moval of the alleged criminal would have to depend upon the 
ascertainment of that fact. It is obvious that there is no tribunal 
upon which this investigation may properly devolve. 

The despatch of Secretary Gresham also deserves special notice, 
in that it recognizes that the captain may, in the execution of his 
discretion, resist by forcible means ‘‘arbitrary attempts to capture 
a passenger by force, without regular judicial process, in a port of 
call.’ He must be careful, however, lest the consequences of futile 
resistance to overpowering force be such as to make the resistance 
itself unwarrantable. As it happens in practice that the states 
with which we are most intimately concerned on this question have 
not heretofore been solicitous to provide themselves with carefully 
prepared papers, emanating from competent tribunals, the ques- 
tion may at any moment arise practically how far the master may 
be justified in resisting. Obviously, in the majority of cases, re- 
sistance would be futile and reckless. There are, no doubt, in our 
merchant navy, men in whose eyes danger does not operate to 
deter, but rather to stimulate; men who might conceive that, the 
exercise of discretion being allowed them by their Government, 
they would be recreant to the duty that they owed their flag if 
they did not oppose force to force, be the consequences what they 
might. Grave consequences might be made to depend on the 
temperament of the commanding officer at any given moment. 
The complications likely to arise from such a state of things might 
be seriously aggravated by the presence of a federal ship in the 
neighborhood, as was the case when Barrundia was demanded and 
slain. The delicacy of the situation needs no better illustration 
than that unfortunate affair. Had Mr. Misner not intervened, the 


International Law—The Rights of Ships 91 


right, at the caprice of her port-wardens or military 
commanders, to board an American ship, contrary to 
the will of her master, for the purpose of ascertaining 
whether on or outside the passenger list there hap- 
pened to be an alleged citizen of Nicaragua who at 


master would probably have been justified, under Secretary Gresh- 
am’s instructions, in offering resistance to ‘‘an arbitrary attempt 
to capture a passenger by force, without regular judicial process.”’ 
As there happened to be a federal ship in his immediate neighbor- 
hood, he might, without undue confidence, have relied upon prompt 
and efficient aid. What Grotius or Vattel may have thought or 
safd on the subject, if anything, the commanding officer of the 
United States ship would probably not have cared to enquire. 

These considerations might be almost indefinitely extended. 
But enough has been said to show that this condition of things is 
too uncertain and dangerous to endure indefinitely. That is a 
miserable condition of servitude where the law is vague and uncer- 
tain; so, at least, says the old maxim. 

A number of interesting cases on the subject of so-called “‘asy- 
lum” might be found in the French books, and while the principle 
is recognized, as stated by Secretary Bayard, that there is no 
right of asylum on merchant ships, still the disposition of the 
French courts and writers has been to extend a generous recogni- 
tion of home jurisdiction to vessels sojourning in French ports. 
One or two cases, by way of illustration, may not be uninteresting. 

Half a century ago a member of the Spanish cabinet, Mr. Sotelo, 
embarked on a French ship, then at Valencia, in Spain, in order 
to escape summary vengeance at the hands of the revolutionary 
party, which was then shedding blood with great freedom in that 
country. Unfortunately for him, the vessel called at the port of 
Alicante in the same country, and the captain was there required, 
by order of the Junta of that place, to deliver up his passenger. 
The captain refused, and the Consul of France intervened in favor 
of the prisoner, but notwithstanding this intervention and refusal 
Mr. Sotelo was removed. The question arose thereupon whether 
the French Government was entitled to remonstrate and obtain 
satisfaction for what was claimed by some persons to be a viola- 
tion of international law. The subject was much discussed, and 
diplomatic notes were exchanged between the French Government 
and the Spanish authorities. France, however, after a full explana- 
tion, conceded that the authorities of Alicante had acted within 
their strict legal right, and the incident had no further result. Here, 


92 International Law—The Rights of Ships 


some time or other might have taken part in one of 
the numerous political revolutions that have dis- 
turbed that republic. Can this be the full hberty 
‘freely and securely”’ to enter such ports in American 
ships and to remain therein which was contemplated 
by the treaty? Such liberty would seem to mean 
something more than capricious toleration. It rather 
appears to imply freedom from molestation and the 


it will be observed, the fugitive had stepped directly from Spain 
on board a foreign vessel. It was not a case of a passenger, enjoy- 
ing his full liberty, starting from a neutral port for another neutral 
port. 

Hautefeuille, however, does not seem to acquiesce in the distinc- 
tion between a man-of-war and a merchant ship, and would con- 
cede the privilege of extra-territoriality to the latter in the same 
manner that it is extended to public armed vessels. 

In 1839 the Court of Bordeaux was called upon to decide a case 
which turned upon the following facts: A French citizen had em- 
barked as a passenger on board an American merchant ship. On 
arriving at Bordeaux he lodged a complaint against the master, 
an American, charging various acts of violence, which he claimed 
that he had been subjected to during the trip. The master set up, 
by way of defence that, conceding the charges to be true, the acts 
complained of had been performed on the high seas, and on board 
an American ship. He insisted, therefore, that the French tribu- 
nals were incompetent, and this contention was admitted. The 
complaint was dismissed. 

This case, however, does not go so far as the French ship Fran- 
conia case, in which the English Courts held that they were not 
competent to take cognizance of a crime committed by a German 
master at sea, although the ship was, in fact, less than a marine 
league from the coast, 7. e., within English territorial waters. (See 
M. Clunet’s Journal of International Law, 1876, p. 413; 1878, p. 16; 
1890, p. 643.) 

The Supreme Court of Justice of Mexico has gone even farther 
in sustaining the jurisdiction of the home authorities in a case 
which much resembles the Wildenhus case (120 U. S. Rep., p. 11), 
although a different result was reached. It was there held that 
the national courts of Mexico were incompetent to take jurisdic- 
tion of a crime committed in a Mexican port by one foreigner 
against another foreigner on board a foreign ship, if the tranquil- 


International Law—The Rights of Ships 93 


right of the master and crew of a ship to immunity from 
offensive interference, so long as no disorder is created 
and no statute violated. But in the Barrundia case 
there was no pretence that this “full liberty’’ had 
been forfeited by misconduct, or that the peace of the 
port was disturbed, or that the master had violated 
the laws of the state. And yet the right was claimed, 
and conceded by the Chargé d’Affaires of the United 
States to Central America, to enter a peaceable ship 
and to perform a most offensive operation, viz., a 
search among the officers and crew for a passenger who 
was said to be a political refugee. 

It is worthy of attention here that even the govern- 
ment authorities of Guatemala did not base their re- 
quest for aid and comfort on any pretence of this 
kind. It was not stated by them that the duty of 
surrender and the right to demand it were alike plain; 
on the contrary, Sefior Anguiano, the Secretary of 
State for Guatemala, placed his demand upon the 


lity of the port had not been disturbed, andif the offender and the 
victim were both members of the crew (Clunet, Droit International 
Privé, 1876, p. 413). It is curious to note here that this decision 
of the Mexican Supreme Court reverses the judgment of the Cir- 
cuit Court, which latter tribunal had taken the same view of the 
subject as our own Supreme Court, viz.: ‘‘When a crime or com- 
mon law offence has been committed on board a foreign merchant 
vessel, and has disturbed the tranquillity of the port, the authorities 
of the country have jurisdiction. They also have jurisdiction 
where the parties interested have claimed their protection. Homi- 
cide is a crime which, even when committed on private individuals, 
threatens the security of all’’ In the Wildenhus case there was 
no pretence that the tranquillity of the port had been, in fact, dis- 
turbed, but it was held that if crimes are committed on board, of a 
character to disturb the tranquillity of the port, the courts shall 
take jurisdiction, and murder was there held to be such a crime. 
No point appears to have been made in the American case of the 
fact that the officers of the Belgian ship had invoked the assistance 
of the local authorities for the arrest of the culprit. 


94 International Law—The Rights of Ships 


special circumstance that a war was pending, which 
fact, in his eyes, created a special situation, on which 
he relied. He wrote: 


The facts referred to, Honorable Sir, show the perfect 
right which exists in the Government of Guatemala, being 
in a state of war, to capture Barrundia on the steamer 
which is anchored in Champerico. . . . Besides, by the 
contract which the Government made with the Pacific 
Mail Steamship Company, that Company should not per- 
mit the bringing or taking to Guatemala, or to the adjacent 
communities, any element of hostility in time of war, such 
as exists at this time. 


It is not material to enquire whether hostilities were, 
in fact, pending when this despatch was written. It 
does appear that a truce had been effected between 
the belligerent republics, the credit of which was due 
in great part to Mr. Misner’s earnest and intelligent 
efforts. The fact which deserves attention is the 1m- 
plied disclaimer of any right to demand summary ex- 
tradition from an American ship except where actual 
hostilities are pending. The object of the demanding 
party in thus making his claim was presumably to liken 
General Barrundia to contraband of war. With this 
view of the case Secretary Blaine deals in his despatch 
and insists that it is not founded; it is no part of my 
purpose to consider that branch of the controversy. 

It remains now for us only to consider how far the 
general rule of subjection to the local law extends, and 
to ascertain whether any exceptions have been en- 
grafted upon it on principle or by custom. 

Mr. Webster has considered this question at some 
length. He lays down the rule thus: 

It is natural to consider the vessels of a nation as part 
of its territory, though at sea, as the State retains juris- 


International Law—The Rights of Ships 95 


diction over them; and according to the commonly re- 
ceived customs, this jurisdiction is preserved over the 
vessels even in parts of the sea subject to foreign domination. 
This is the doctrine of the Law of Nations, clearly laid 
down by writers of received authority and entirely con- 
formable, as it is supposed, with the practice of modern 
nations. . . . Itis true that the jurisdiction of a nation 
over a vessel belonging to it, while lying in the port of an- 
other, is not necessarily wholly exclusive (Webster’s Works, 
vol. vi., pp. 306, 307, cited by Secretary Blaine at length). 


Here, it will be observed, Mr. Webster asserts the 
general rule to be in favor of the jurisdiction of the 
state to which the vessel belongs; any deviations from 
this general principle being exceptions, the burden of 
asserting and proving them must fall upon the local 
powers where they seek to enforce the supremacy of 
local laws. All the authorities concede that these 
laws may properly be invoked for unlawful acts done 
by the ship’s crew while in port, as well as for the 
enforcement of contracts entered into by the master 
or owners with citizens or residents of the country 
where the ship is temporarily stopping. So, too, where 
crimes are committed which break the peace of the 
community, the offending parties may not shield them- 
selves from trial and punishment by invoking the 
home jurisdiction. But with these exceptions we are 
not concerned. They are, no doubt, founded in jus- 
tice and reason, but they afford no warrant or justi- 
fication for the claim that in time of peace a merchant 
vessel of the United States may be entered and ran- 
sacked for the purpose of finding some obnoxious 
person whose presence may be unknown to the cap- 
tain, and who has, while on the ship, in no manner 
violated the laws. 


96 International Law—The Rights of Ships 


This form of summary extradition at the will of the 
demanding power is strongly opposed to the modern 
practice of surrender. No Government admits, cer- 
tainly our Government does not recognize, the obliga- 
tion to return a fugitive to the country from which he 
has escaped, unless it has bound itself so to do by 
treaty obligations; and in thus binding itself it has 
always refused to return political refugees. In all 
cases the party charged with crime is permitted to 
defend himself and to prove his innocence. While he 
does not receive the benefit of a trial in a strict and 
technical sense, a judicial investigation must be had 
in which his identity and the probability of his guilt 
must be shown. It is repugnant to the orderly and 
law-abiding habits of our people to hold that none of 
these statutory safeguards may be observed where a 
ship is concerned, and that the duty of surrender is 
absolute, imperative, and unmitigated even by a 
show of legal form. 

Our late Secretary of State, Judge Gresham, was 
called upon in January of last year (1894) to lay down 
a tule of action for the government of masters of 
vessels, in order that they might act intelligently in 
emergencies of the character above described. He 
declined, however, to take this responsibility, on the 
ground that it was not practicable to lay down a 
general fixed rule applicable to the varying conditions 
in such cases. He did go so far as to state that “as a 
comprehensive principle” it is well established in in- 
ternational law that a merchant vessel in a foreign 
port is within the local jurisdiction of the country 
with respect to offences or offenders against the laws 
thereof, and that an orderly demand for surrender of a 
person accused of crime by due process of law, with 


International Law—The Rights of Ships 97 


exhibition of a warrant of arrest in the hands of the 
regularly accredited officers of the law, may not be dis- 
regarded nor resisted by the master of the ship.” 
But this proposition thus carefully laid down by this 
experienced jurist does not strip the subject of all its 
difficulties. Let us suppose a doubt as to the regu- 
larity, genuineness, or validity of the alleged order of 
arrest, or a question as to there being a due process of 
law or as to the right of the accredtted officers so called, 
who is to resolve this doubt and settle this question? 
Suppose, too, that the identity is disputed, or that the 
alleged offender is a citizen of the United States, and 
denies the charge 7m toto, how are such points to be 
tried? These palpable embarrassments are further 
enhanced by the approval given to the decision of 
Secretary Blaine in the Barrundia case. 


The diplomatic and consular representatives of the 
United States in the country making the demand are as 
incompetent to order surrender by way of quasi-extradi- 
tion [says Judge Gresham] as the shipmaster is actively to 
deliver the accused. This was established in the cele- 
brated Barrundia case by the disavowal and rebuke of 
Minister Misner’s action in giving to the Guatemalan au- 
thorities an order for the surrender of the accused. 


And yet may it not be asked whether the action of 
the Minister was so objectionable as to warrant dis- 
missal if he merely ordered that to be done which it 
was lawful to do without his interference? It should 
be remembered, in justice to Mr. Misner, that as a 
preliminary to his own action, and in the honest belief 
that he was exercising a ministerial duty, he made the 
best terms that he could make for the protection and 


the fair trial of the unfortunate Barrundia. 
Wf 


98 International Law—The Rights of Ships 


The Supreme Court of the United States has re- 
cently considered the question of jurisdictional con- 
flict between the nation to which a ship belonged and 
the port in which that ship was sojourning. 

Briefly, the facts were these: A boy named Wilden- 
hus, engaged as a cabin boy on a Belgian ship, killed 
another boy while the ship was anchored at Jersey 
City. He fled, but after a few hours returned to his 
ship, where he was arrested by the police of New 
Jersey, which police had been notified of his flight and 
requested to aid in his capture. The Belgian consul 
claimed jurisdiction for Belgium under the treaty be- 
tween the two nations, and applied for a writ of 
habeas corpus to the Circuit Court of New Jersey. 
The court refused to deliver the prisoner, whereupon 
the case was carried to the Supreme Court on an 
appeal taken by the Belgian consul, where the decision 
was sustained. Chief Justice Waite wrote the opinion 
of the court, and stated what he conceived to be the 
law applicable to such cases: 


It is part of the law of civilized nations that when a 
merchant vessel enters the ports of another for the pur- 
poses of trade, it subjects itself to the law of the place to 
which it goes, unless by treaty, or otherwise, the two coun- 
tries have come to some different understanding or agree- 
ment. . . . And so by comity it came to be generally 
understood among civilized nations that all matters of dis- 
cipline and all things done on board which affected only 
the vessel or those belonging to her, and did not involve 
the peace or tranquillity of the port, should be left by the 
local Government to be dealt with by the authorities of 
the nation to which the vessel belonged, as the laws of that 
nation or its interest should require. 


The court then held that a murder on shipboard 


International Law—The Rights of Ships 99 


and in the port came within the treaty provision as 
being a “disorder”? that would disturb tranquillity 
and public order on shore or in port. 

It may not be easy to draw any certain conclusion 
from what precedes as to the right of one of our 
neighboring republics to search American vessels for 
political refugees, where the vessel is innocent and in 
transit from one neutral port to another. But I would 
venture to suggest that there is enough to sustain the 
view that it is no part of the duty of an American 
minister to a Central or South American state to lend 
the prestige of his position and the dignity of his office 
to an act which is inconsistent with the general views, 
usages, and practices of our people. Laws are good 
and laws are bad as they represent the deliberate 
sentiment of the mass of our citizens. The law of 
nations is not a mummy embalmed in superannuated 
practices and artificial formulas. It is, if a science at 
all, a living, growing system, keeping pace with the 
development of civilized mankind and dealing with 
problems which Grotius did not dream of. Arbitrary 
kings, cruel methods of dealing with prisoners, the 
sacred duty of allegiance to the country of one’s 
birth, have long since disappeared.!. A nation whose 


1 The doctrine that a man owes eternal allegiance to the country 
of his birth came over to the States with the English Common Law, 
and continued to live in theory long after it had died in practice. 
Jurists and courts have insisted that no man could, of his own voli- 
tion, sever the bond that fettered him to his native land. It is 
only of late years that the doctrine has been a proper subject for 
post-mortem autopsy, as it might theretofore be said to enjoy civil 
life although it was,in fact,dead. From the earliest days of our 
history, naturalization has been practised under laws made by Con- 
gress. The Constitution of the United States itself vested that 
body with the power to make citizens of alien material, by passing 
uniform laws of naturalization, while at the same time the Supreme 


100 International Law—The Rights of Ships 


greatness rests upon a successful rebellion will not look 
upon popular uprisings with unmitigated abhorrence. 
A new order of things has arisen with the establish- 
ment of popular government in the United States. It 
is inevitable that we should meet with new problems; 


Court of the United States felt bound to stand by ancient land- 
marks, and refused to acknowledge the right of an American citizen 
to exchange his nationality for another, although the machinery 
provided by Congress for transmuting citizens of other countries 
into citizens of the United States was in full and fruitful operation. 
As Mr. Lawrence states it: 

““While Congress has proffered a participation in political rights 
to the people of all countries, and the Executive has gone to an 
extent, the correctness of which may well be questioned, in sus- 
taining reclamations on behalf of naturalized citizens even in the 
country of their origin, and has declined to interfere for an Ameri- 
can who had invested himself with a foreign nationality, the Judi- 
ciary, the legitimate arbiter of the constitutional question, has 
refused to sanction expatriation depending on the volition of the 
party.” 

In 1799 Chief Justice Ellsworth attempted to give reasons for 
the apparent inconsistency between the action of the legislative 
branch and the decisions of the courts. His argument is probably 
the best that could be made, but it does not follow that it is con- 
clusive. Perhaps it was not possible to reconcile the naturaliza- 
tion of foreigners with the refusal to recognize the transfer of 
allegiance of our own citizens to another power, unless by frankly 
conceding that the courts must continue to follow precedents which 
had outgrown their usefulness and ratson d’étre, until such prece- 
dents were brushed aside by competent legislation. This is the 
Chief Justice’s language, in support of a ruling that, allegiance 
being unchangeable, evidence was not competent to show that the 
American citizen had been naturalized elsewhere: ‘““We do not 
enquire what the relation of an alien seeking naturalization in the 
United States is to his own country, we have not the means of 
knowing, and the enquiry would be indelicate; we leave him to judge 
of that. If he embarrasses himself by contracting contradictory 
obligations, the fault and the folly are his own. But this implies 
no consent of the Government that our citizens should expatriate 
themselves’”’ (Wharton's State Trials, p. 654). It might be re- 
spectfully suggested here that while the ‘‘fault and the folly’’ 
might be those of the alien applicant for naturalization, the re- 


International Law—The Rights of Ships tor 


it is plain that we shall have to deal with them even 
to the extent of making our own precedents. We 
shall deal with them justly and for the benefit of com- 
ing generations by bearing in mind the precepts and 
practices of our Washington, by striving on all oc- 
casions to observe “‘the genuine maxims of an honest 


sponsibility for these fell upon the Government, which, by accepting 
him into its family of citizens, undertook to protect him and his 
children as thoroughly and effectually as though his ancestry had 
emerged from the Mayflower, and from that day to this their 
descendants had never left American soil. 

It might perhaps be ‘‘indelicate’’ to vex him with impertinent 
enquiries, but unfortunately the most thorough cross-examination 
as to his relations with any former prince or potentate would reveal 
nothing material to the subject. If his character was shown to be 
satisfactory, and his devotion to the principles of the Constitution 
sufficient in quality and quantity to make him a desirable citizen, 
he was entitled to his patent on proving that he had resided in the 
country during the statutory period. Whether the Chief Justice’s 
reasons were or were not logically sufficient, commentators agree 
that the decision reached by him was sound, and that the general 
judicial consensus has been that no citizen of the United States 
can throw off his allegiance without the consent of Congress. 

It may be of interest to note here that as Kings of Spain have 
in the olden times, by an act of royal bounty, turned the plebeian 
inhabitants of a whole province into patricians, with the inesti- 
mable privilege of prefixing the noble de to their names, so this Gov- 
ernment has raised whole communities of foreigners to the dignity 
of citizenship by one stroke of the legislative and executive pen. 

Thus, by collective naturalization, following on annexation of 
territory, the inhabitants of Louisiana in 1800, of Florida in 1819, 
and of ceded portions of Mexico in 1848, became citizens of the 
United States; so, too, by resolution of Congress, all the citizens of 
the Texas Republic became, without any express declaration, citi- 
zens of the United States.—Lawrence’s Wheaton, 897. 

In 1868, however, Congress passed an Act which may be con- 
sidered as an epitaph upon the grave of the old common-law 
doctrine. It declared that the ‘‘right of expatriation is the natural 
and inherent right of all people, indispensable to the enjoyment of 
the right of life, liberty, and the pursuit of happiness,’”’ and pre- 
scribes ‘‘that any declaration, instruction, opinion, order, or de- 
cision of any officer of this Government, which denies, restricts, 


102 International Law—The Rights of Ships 


and magnanimous policy.”’ Our territory is open to 
all except to those whose crimes unfit them for com- 
panionship with our people. Is it claiming too much 
to demand that the flag at our masthead should, even 
in a foreign port, symbolize something of our origin, 
traditions, and practices? Or should it be no more 


impairs, or questions the right of expatriation, is hereby declared 
inconsistent with the fundamental principles of this Government.” 

Shortly before that year (1868) under the stress of the same 
influences that produced the Act last cited, treaties to the same 
practical effect had been made with various foreign countries, such 
as the North German Confederacy, Bavaria, Baden, Wurtemberg, 
Belgium, Hesse, and Austria. Finally England, following our 
example, sacrificed the time-honored fiction to which she had 
clung so stubbornly, and on May 14, 1870, the Imperial Parlia- 
ment declared that any British subject, who had prior thereto or 
might thereafter become naturalized in any foreign State in which 
he happened to reside, should be deemed to have ceased to be a 
British subject, and be regarded as an alien. 

While this legislation removes the chief objection in the way 
of the American citizen who may choose to expatriate himself and 
to become naturalized abroad, certain incidental questions are still 
unsettled. President Grant, in his Fifth Annual Message (in 1873), 
called attention to the fact that Congress had not indicated in the 
statute, nor has it done so since that time, what acts were deemed 
to work expatriation. 

Students who may be interested in pursuing this subject will 
find an interesting case recently decided in Louisiana by Judge 
Billings (Comitis v. Parkerson), June 17, 1893. It turns upon 
the vexed question, how far the status of an American woman is 
affected by her marriage to an alien. The learned judge reaches 
a different conclusion from that reached by Justice Brown (now of 
the Supreme Court of the United States) in the case of Pequignot 
v. City of Detroit, XVI. Federal Reporter, p. 211. These, how- 
ever, are merely incidents to the general question, and are of minor 
importance from the rarity of their occurrence. The chief diffi- 
culty arises from the fact that a large number of Europeans seek 
refuge in America and become citizens for the sole purpose of 
avoiding military service, which demands the personal presence 
under the flag, of substantially all able-bodied men. It is not to be 
wondered at that foreign governments should look with jealousy 
upon the facility held out to their people for evading the heaviest 


International Law—The Rights of Ships 103 


nor less than an ornamental device which loses its 
meaning as soon as it floats in the slip of a foreign 
wharf? The question will have to be decided at some 
future and perhaps not distant day. We may con- 
fidently hope that it will be settled calmly, deliber- 
ately, and justly; it will then surely meet a response 
from and the hearty approval of the American people. 

Since the above was written another episode of the 
Barrundia order has occurred. Another Central Amer- 
ican refugee has been demanded and taken from a 
Pacific Mail steamer by the Government of Salvador, 
and, it is said, summarily put to death on landing.! 
Whether our Government will be disposed in the 


of all burdens by a transatlantic voyage. The fact that during the 
last twenty-five years we have maintained amicable relations with 
the continental nations of Europe, and fairly adjusted all differ- 
ences arising out of this state of things, reflects high honor upon 
our diplomacy. (See Secretary Frelinghuysen’s despatch to our 
Italian Minister, December 16, 1883.) 

1 The details of the occurrence, referred to in the text, are taken 
from despatches dated San Francisco and Washington, September 
ro, 1895, and printed in the New York World of September 11th. 
From these despatches it appears that the steamer Czty of Sydney, 
which had just arrived from Panama, brought particulars of the 
capture, by the Salvador authorities, of Florencio Bustamente, one 
of Antonio Ezeta’s favorite lieutenants. It was believed by Span- 
ish Americans who arrived on the City of Sydney, that Bustamente 
had been torn to pieces by an infuriated mob, or publicly shot in 
the streets of San Salvador. The surrender of Bustamente by the 
people of Nicaragua was supposed to be in return for the friendly 
action of Salvador in the Corinto affair. 

The Washington despatch stated that although no official report 
of the forcible seizure on board an American steamer of Bustamente 
by Salvador officials had reached Washington, it was believed, 
from the presentation of the facts made in the report, that the 
seizure was lawfully made, and that the United States could not 
make an international issue in the case. The writer of the de- 
spatch cited, in support of this hypothesis, the language used by the 
late Secretary Gresham, in the letter to the President of the Pacific 
Mail Steamship Company, which letter is referred to in the text. 


104 International Law—The Rights of Ships 


future to take part in furnishing such bloody enter- 
tainment to a lawless and cruel mob time will show. 
But it must be a subject of grave concern to us that 
such an anomalous situation should exist. Our De- 
partment of State has not been governed by fixed 
harmonious views in this important matter of sur- 
render. The weight of authority thus far seems to be 
in favor of yielding to the claims of demanding govern- 
ments, but it would be idle to deny that another ad- 
ministration may be disposed to adopt a different rule 
and to follow the precedent created by the dismissal of 
Mr. Misner to all its logical consequences. The worst 
that can befall us is that the law should be vague and 
uncertain. Possibly new treaty stipulations might be 
effective and salutary. The restless republics with 
which we have to deal might find it to their own 
interest to put a curb upon themselves. The rebel of 
to-day may be the successful patriot of to-morrow. 
The statesman who signs a treaty to-day may to- 
morrow, like Barrundia, Gomez, and Bustamente, 
turn anxious eyes to the flag of the United States and 
wonder whether its majesty can save him from the 
angry crowd that clamors for his blood. It has been 
said long ago that the distance is short between the 
Capitol and the Tarpeian Rock. It might prove a 
real service to our neighboring republics to teach them 
by treaty restraints, as we have taught them by our 
recent history, that the cause of free government is not 
aided by bloody reprisals. Clemency after the battle 
is the wisest of policies. If we can engraft this prin- 
ciple upon our diplomatic records and conventions, we 
shall add another to the list of our services to the 
world. 








IV 


INTERNATIONAL LAW ! 


couraging — to preface the discussion of legal 

subjects by the payment of tribute to the great- 
ness and glory of our common profession. Here, at 
least, we shall all agree, differing perhaps from a 
considerable portion of the human race in our estimate, 
but asking for no better evidence of its exceeding 
usefulness than the denunciation and ridicule which 
have been showered upon it from immemorial time. 
Great wits and small ones have honored our calling by 
their malice and shown its strength by the innocuous 
results that followed the discharge of their noisy but 
harmless artillery. Great kings have found that they 
could subdue armies, fetter the press, and dazzle the 
world by their exploits, yet fail to conquer the bar. 
Napoleon himself, the Titan of modern times, was 
helpless before it, and failed to cajole or terrify it into 
silence. He could make decrees from Berlin and from 
Moscow, and direct the passage of such laws as he 
deemed wise to have enacted, but in the end it was 
the lawyer who interpreted those laws and construed 
those decrees. For the law is the spiritual monitor 


1 Address delivered before the alumni and students of the Law 
Department of the University of Pennsylvania. 


f may not be inappropriate —it is certainly en- 


105 


106 International Law 


and guide of nations, nay, the spiritual life itself; her 
ministers, however unworthy, cannot but represent 
some of her majesty. The law is the concrete ex- 
pression of justice, the great ligament that holds com- 
munities together; the advocate is her mouthpiece 
and interpreter. His the function to keep alive the 
fires of human liberty, and as he succeeds or fails in 
this so shall the honor of the bar rise or fall. The law 
is the antithesis of force, they cannot co-exist on 
equal terms. Force may triumph for a day, but only 
for a day. As with the passing centuries, the world 
grows wise, it learns the lesson more deeply, that force 
is the most expensive and most costly, the most un- 
certain of expedients for righting a wrong. The poet- 
philosopher of the Augustan age boasted as one of the 
titles to glory of his imperial master, that the forum 
was free from lawsuits. A golden age, indeed, if the 
absence of litigation really meant that men honestly 
performed their obligations without coercion; a happy 
state, the existence of which we may well doubt. 
Perhaps the knowledge that courts did exist, which 
were open to the oppressed and injured, might 
account for this phenomenon; perhaps stagnation in 
the lawyers’ business meant that the general activities 
and enterprise were paralyzed by war and the pursuit 
of glory; perhaps, too, the poet exaggerated, as poets 
sometimes will. We must remember that the bar of 
that day resembled only in name the bar of to-day. 
Justice, with bandaged eyes holding the impartial 
scales with firm and steady hand, stands as our em- 
blem. Apollo, flaying Marsyas who had dared to 
compete with him in performance on the flute, stood 
in front of the Roman rostrum, a ghastly spectacle 
indeed, but whether a warning to the client or his 


International Law 107 


counsel, history does not tell. Even this cruel opera- 
tion could not cure the flute-player of his love for art, 
nor rob him of his gifts. At least, tradition says that 
after it had been performed, and the hapless artist 
bereft of his natural covering, the latter was turned 
into a bag, and when filled with air gave out sweet 
sounds if moved by the musical waves of a melodious 
flute. Thus did the victim against lawless violence 
protest, and as far as might be discourse in favor of 
the liberty of speech. 

The history of a free people is the history of its bar. 
No nation, at least in modern times, has ever achieved 
its freedom without the aid of the advocate. With us 
this is a truism, and needs no demonstration. From 
the earliest days we find our brethren in season and 
out of season, at the risk of life and liberty using their 
gifts in favor of freedom and against oppression. 
While we note with regret that the greatest of our 
national heroes, Washington himself, had not been 
provided with a legal education, it is to his credit that 
he surrounded himself with eminent lawyers, such 
men as Jefferson, Hamilton, Adams, and took their 
counsel. With these men to guide him, personal 
knowledge of the law was scarcely necessary. He 
was able to act judicially, and, as often happens with 
good and honest judges, the abundance of learning in 
the counsel supplemented any lack of learning in the 
court itself. 

That there is nothing in legal training to unfit the 
advocate for sterner duties in the field a roll of honor- 
able names, conspicuous in war and peace alike, is 
with us to prove: the truth is shown in our history 
that patriotism and devotion are not enfeebled by the 
pursuit and mastery of legal studies. Cedunt arma 


108 International Law 


toge is not more true than the converse of the propo- 
sition. The same men have dropped or taken up the 
toga or the sword as the necessities of the nation de- 
manded; they have promoted the arts of peace, and 
have stood out as the leaders in the conflicts of war, 
eminent and great in both alike, 

But it is especially in our own day that the usefulness 
of the bar has been conspicuous and important. The 
close relations of different nations have removed 
ancient prejudices and quickened latent sympathies 
into vigorous life. War has become less frequent, not 
only, I might say not so much, because of the growing 
regard for human life and impatience of human suffer- 
ing, but because of the commercial spirit that has 
taught men to calculate the cost of armed conflicts. 
Few nations can afford to spend the money necessary 
for the outfit of an army. It was easy enough and 
cheap enough to send one hundred thousand men into 
the field so long as they could use the muskets that 
their fathers had used, or the spears and swords that 
were deadly enough but inexpensive. When, how- 
ever, the changing fortunes and feverish competitions 
of rival nations require endless novelty in guns, forti- 
fications, methods of transportation, of attack, and of 
defence, greater care for the injured, better food for 
those who do the fighting, and less freedom in dealing 
with the property of non-combatants, a new order 
of things arises. The perplexities of rulers serve to 
keep the temple of Janus closed. Homicide becomes 
absurdly expensive. Glory loses prestige as the cost 
and risk rise to unheard-of proportions. Personal 
prowess hesitates when rifles kill at 6000 yards; strong 
towns lose their confidence when Krupp guns thunder 
destruction before they are in sight and treat ancient 


International Law 109 


defences with brutal and ruinous contempt. The 
banker in Lombard or Wall Street raises his voice and 
threatens to cut off the needed supplies, while the 
degenerate combatant prefers the farm or the work- 
shop to the hazards and discomforts of a compaign in 
midwinter. The instinct of destruction is still present, 
for men are still human, the temptation to invoke the 
ultima ratio of kings still agitates the breast of rulers, 
but fear of results is as potent as the love of peace. 
They arm millions of men to show that they are ready 
for war, while year after year they proclaim their 
pacific purposes, and their readiness to enforce these 
purposes at the cannon’s mouth. 

There is, indeed, no more instructive and edifying 
spectacle than this long-continued abstinence from 
war when so many are ready to accept it if only 
some one of the parties will throw down the gauntlet. 
Fermentation thus indefinitely protracted without 
explosion is a novel and cheering spectacle which must 
fill the world with amazement and the bar with pride. 

For, it must be remembered, the self-denial of 
emperors and kings does not remove the causes of 
irritation which once required blood-letting in nations 
as in persons. Differences will inevitably arise. The 
ambition of the strong is not dead, the sharp line 
between right and wrong is not more manifest to-day 
than in the past. Weak nations are as apt as ever to 
offend by their exasperating debility, while territorial 
expansion appeals with ever-increasing eloquence to 
great and small. The rush to Africa and the eager 
haste of the powers to seize a share of the Dark Conti- 
nent without a dangerous fillip to the susceptibilities 
of rivals is an illustration of this. The old countries 
are being sorely crowded. America objects to being 


110 International Law 


partitioned, and the chief of American nations does 
not hesitate to file a lis pendens on the hemisphere. A 
war between any two powers might involve the world 
in a destructive conflagration wherein old landmarks 
might be obliterated and venerable constitutions 
shrivelled up like a scroll before the fire. How, then, 
shall the world settle its quarrels and contentions, 
save by calling the lawyers to talk the matter over, 
and to arrange affairs according to the principles of 
‘‘natural justice’? True, no man has yet been found 
who could, or at least would, accurately define what 
these principles are, where they begin, and where 
they end, what their origin, and how they sprang into 
life or grew into recognition. Their starting-point As 
a mystery, their development, if they be what they 
claim, is a misnomer. But, fortunately for the world, 
a shibboleth need not be intelligible: perhaps it com- 
mands respect in the inverse ratio to its intelligibil- 
ity. Its plasticity recommends it to those who might 
refuse their acceptance if all agreed as to its meaning. 
Even to-day, although international law, so called, has 
reached the high-water mark of fashion and popularity, 
who will venture a definition? Is it a science at all, is 
it in any sense a law, or a system? How can that be 
a law which finds no place for a superior or an inferior, 
which recognizes no sanction, submits to no tribunal, 
and shows itself in the critical periods of modern his- 
tory to have been little more than a harmonious setting 
to modern music of excellent rules which are easily 
misunderstood, more easily evaded, and most easily 
perverted to base uses. 

The eminent Lord Chief Justice of England has 
within the year added his own definition to the many 
which had heretofore been presented as solving the 


International Law rca 


problem. Lord Russell says that “international law 
is nothing more nor less than what civilized nations 
have agreed shall be binding on one another as inter- 
national law.’’ A higher authority for a legal defini- 
tion could not easily be found, not only because of the 
eminent judicial position of the author, but because of 
his cultured abilities, his large experience, and known 
keenness of analysis. If we must abide by any one 
attempt at definition, we might, out of respect for the 
great jurist who honored us with his presence a few 
months ago, accept this formula. It is at least free 
from affectations of speech; it does not offend by any 
effort to cover up faults of substance with ambition of 
language. And yet, if it be not improper here to sug- 
gest a doubt as to the practical aid thus given us, we 
might well ask ourselves if, owing to the inherent 
difficulty of the task, this eminent jurist has not failed 
to simplify the subject to any appreciable extent. 
‘What civilized nations have agreed shaJ1 be binding 
on one another”’ is international law. This seems so 
obvious that criticism blushes at fault-finding as though 
it were caught flagrante delicto in the commission of 
some moral wrong. But the very words used are big 
with potential deception. Who shall say whether any 
given nation deserves to be called a “‘ civilized” nation? 
The line of demarcation may be as difficult to draw as 
it is in private life to draw the boundary between a 
gentleman and one who is not a gentleman, a wise man 
and a fool, a scholar and an ignoramus. The ex- 
tremes in each class are easily recognized and classed. 
But the sinner may in a moment of inspiration rise to 
the heights of the saint: what label shall we in general 
terms affix to his character? George IV. was the 
‘first gentleman of Europe”’; shall we accept him as 


I12 International Law 


a type like Sidney and Bayard? Benedict Arnold 
lives embalmed in the contempt of a great nation be- 
cause of the one act that sullied a brilliant life, but 
another great nation received him with open arms, 
allotted him an honorable livery, and treated, or 
affected to treat him, as a patriot and a hero! Whose 
standard was right, whose was wrong? 

Probably the “civilized nations’”’ will none of them 
accept Turkey as one of their guild; nay, they all treat 
her, by reason of this excommunication, as they will, 
simply because they are not dealing with one another. 
It would, indeed, be a one-sided contract if Great 
Britain or France, confessedly civilized, should feel 
bound to treat the Turk as though he were a Christian, 
while he recognized no authority, and bound himself 
to no rules of good behavior. And yet, if there be a 
moral sanction in these rules, how can they be taken 
up or laid aside according to the station of the party 
whose rights are involved? But the difficulty extends 
much farther. Granting that the definition does not 
prevent the abrogation or expulsion of Turkey, nor the 
arbitrary and violent seizure of African territory, who 
shall say when a nation is so civilized as to come 
clearly within the definition? Shall she herself have 
a voice in the matter? If her ports are about to be 
bombarded or her territory torn from her by violence, 
may she say, ‘Stop, I am civilized, and the rules do 
not permit you to treat me in this brutal manner.”’ 
Or may the unquestionably civilized power justly as- 
sume the judgment seat, and retort, “No, you are not 
civilized, you have no habeas corpus, no trial by jury, 
no liberty of the press. You do not belong to our 
privileged brotherhood of states; ergo, you shall be 
taught reason at the cannon’s mouth.” It is much to 


International Law 113 


be feared that unless the balance of power, a big 
brother, or some other Deus ex machina should appear 
on the stage, the bombardment would have to go on, 
the rules being suspended. 

Nor is this all. The rules, it is said, are binding on 
the civilized nations who have agreed to be bound. 
But what becomes of the civilized nations that have 
not agreed, because they came into the world as 
governments too late, or ripened into salutary civili- 
zation so recently that they have not had an oppor- 
tunity to recognize the binding force of the rules? 
This Republic, for instance, while generally recognized 
as one of the civilized nations, even if peradventure 
given to over-freedom of speech, dissents from some 
of the rules—those on privateering, by way of example. 
What is her status under the rules? How far do they 
apply to her? Rules of international law, if they 
mean anything, are intended to promote the interests 
of the nations that recognize them, to the extent of 
giving them a just equivalent for what they concede 
to one another. But the United States as a nation, 
by its extent, its resources, the nature of its govern- 
ment, its remoteness from European communities, 
its natural sympathies for weaker neighbors, must 
necessarily take a different view of many subjects 
from others in the civilized combination. Shall she 
be voiceless when right and justice according to her 
standpoint are violated under the generally accepted 
rules? Or may it not be fairly claimed that so im- 
portant a factor in the society of nations shall have 
its influence and be recognized, even if old ideas must 
be modified, ignored, or set aside? 

Much of the misconception on this subject arises, as 


is often the case, from a confusion in terms. Not only 
8 


114 International Law 


is there no international law in the true sense of the 
expression, but the expression itself is misleading. 
The jus gentium is the right of nations, or, as it is 
termed in the continental books, le droit des gens. 
As individuals may be said to possess rights inherent 
and inalienable,—at least our great Declaration so 
states as a proposition beyond dispute,—so it may be 
said that each nation has the right to preserve and 
defend its existence, to assert and maintain its in- 
dependence. Certainly in theory this may not be 
gainsaid. From this right must of necessity arise and 
grow corresponding duties on the part of others. To 
what limit this right may be extended, how far it may 
be circumscribed, to what extent the “pursuit of 
happiness”? may justify expansion, how far the right 
of self-defence may interdict its indulgence, these are 
the problems involved. No great nation has ever hesi- 
tated to pursue her own advancement where it could 
be done without danger and without shocking the 
public opinion of civilized mankind. But great and 
powerful nations have learned by experience that self- 
denial might be more profitable than the application 
of brute force, provided a like restraint was observed 
by their neighbors. International law, if there be any, 
is the law of enlightened self-interest, guided by 
prudence, and by the consciousness that peace has 
marked advantages to recommend its preservation. 
It is a curb upon rashness, a moral adviser against 
brutal measures, a reminder that the fortunes of war 
are uncertain. The great purpose of and incentive 
to a system of intercourse based upon mutual respect 
for public rights is the approximation among nations 
to the methods generally accepted among men in their 
individual capacity. That is to say, the governments 


International Law 115 


of to-day are willing, as a general proposition, to rec- 
ognize the existence, in times of peace, of ethical 
rules which it is to the general advantage that all should 
obey. And as no ethical system devised by the wit of 
man has ever approached in beauty and perfection the 
Christian religion, the principles of the faith have been 
accepted, with limitations of place and circumstance, 
as the groundwork of international rights and duties. 

Evidently it is no easy task to define such a system 
or science as this. It is easier to state what it is not 
than what it is. It certainly is not a system of law, 
if any known definition of law has preserved its value. 
No rule of action may properly be termed a law, which 
has no sanction. A rule, to be efficacious, must be 
imposed by a superior upon an inferior: there must 
be the fear of punishment attached to its violation, or 
the hope of reward must encourage obedience to its 
mandates. When we speak of the divine law, the 
federal law, the state law, we use words which present 
an intelligible idea. Even if we speak of the law of 
nature we are within the truth, for Nature punishes 
the transgression of her edicts with unfailing severity. 
But international law is different from all these, and 
can no more restrain the anger of an aroused people, 
than King Canute on his throne could drive back the 
waves that took no heed of his royal commands. 

If, then, I have ventured to criticise the language of 
the eminent Justice in his attempt to formulate his 
own idea of international law, it is not from any doubt 
that it was as accurate as the nature of the case al- 
lowed, but simply because it is not, or at least has not 
yet been possible to define international law on the 
theory that it is a law at all. 

Under these circumstances it should be obvious that 


116 International Law 


I cannot undertake with any confidence the task 
which so many have attempted without absolute 
success. I would venture, however, to describe my 
own imperfect conception of what is termed inter- 
national law, by saying that it is the result of an 
implied agreement among civilized nations to abide 
by those practices which have proved most conducive 
to the promotion of profitable intercourse in peace, 
and to the mitigation of suffering and hardship in war. 
I hope that I am not overrating my own powers of 
critical analysis when I add to this the confident as- 
surance that I could detect many flaws in this rather 
clumsy definition had it been presented by any other 
person than myself. Possibly even this circumstance 
may not be absolutely prohibitory, when time and 
reflection have suggested needed improvements. 

How far the Christian religion has contributed to 
the formation of the jus or right of nations may not 
be easy to determine, but it does, nevertheless, seem 
clear that no such system could have existed when 
Rome was mistress of the world, or could exist to-day 
but for the lofty principles inculcated by that form of 
religious belief. It is an offshoot of the teaching that 
men are brothers even when they live on the opposite 
banks of a river, even when they speak a different 
language, even when they present wide divergences of 
morals, tastes, habits, and customs. If men acting in 
their political capacity were governed by the same 
rules and principles as they are in their private lives, 
Christian ethics might be a much more potent factor 
in the adjustment of international relations. But, un- 
fortunately, America is not the only country where 
public men claim the right to own two consciences, one 
for the guidance of their public, another for the di- 


International Law L17 


rection of their private life. Great ministers and 
kings have deemed it lawful to deceive, cheat, despoil, 
and destroy their neighbors with such happy results 
that to say, ““ Honesty is the best policy”’ in the public 
conduct of nations would betray ignorance or suggest 
sarcasm. Probably no great power in Europe may 
boast that its record is entirely free from blemish. 
After the treaty of Berlin a few years ago, the French 
ambassador returned home with the boast that France 
had kept her hands clean, which was certainly true 
if cleanliness and emptiness had been interconvertible 
terms. But it is no imputation upon her citizens to 
add that they might have preferred some substantial 
evidence of practical diplomacy,—an island in the 
Mediterranean, for instance,—even if the perfect purity 
of her motives and conduct had been thereby made 
less apparent. We ourselves boast, justly, I think, 
that our conduct of public affairs has been, on the 
whole, conspicuously free from reproach. Yet this is 
what one of our reliable historians, an American of 
Americans, has to say: “In the end far more than 
one half the territory of the United States was the 
spoil of the Spanish Empire, rarely acquired with per- 
fect propriety. To sum up the story in a single word: 
Spain had immense influence over the United States, 
but it was the influence of the whale over its captors, 
the charge of a huge, helpless, and profitable nation.” 
—Adams, v. I, p. 343. 

It may be interesting here to note that the attempt 
was made during the present century to subject in- 
ternational relations to the exalted precepts of the 
gospel. Alexander, the Emperor of Russia, after Wa- 
terloo and the resulting restoration of Louis XVIII., 
seems to have been deeply affected by his and his 


118 International Law 


allies’ triumph over the giant whom they had over- 
thrown. He determined that, so far as lay in his 
power, he would see to it that the world should be 
governed by Christian principles, and, carrying his 
theories into practice, he proceeded to convert the 
king of Prussia and the emperor of Austria to his own 
way of thinking. Poland was not represented in these 
royal and imperial conclaves, except by those who 
had themselves partitioned her. A league was formed 
by which three mighty sovereigns agreed to consider 
themselves as members of one great Christian family; 
their real and sole sovereign was Almighty God, 
whose delegates they declared themselves to be. 
Thenceforth, they would tend their respective flocks 
according to the Word of God. Naturally, there could 
be but one appropriate title applied to this association, 
and it was accordingly known as the Holy Alliance. 
England refused to enter into this impressive and 
picturesque concert of potentates, her representative 
(Lord Castlereagh) having written that the Emperor 
Alexander was out of his mind, but others gave their 
assent to the initiation of Christian politics, and the 
law of charity was thenceforth to rule the world. 

But the effervescence which prompted this fine 
innovation was soon over. Napoleon was chained to 
his weather-beaten rock, and it was not likely that he 
would ever be released except by death, a contingency 
to which none of the parties to the new dispensation 
objected, as he would then no longer be dangerous. Se- 
curity of tenure is a conservative adviser. When the 
recently shaken thrones had been repaired, and their 
owners became firmly seated, it was evident that 
the pestilence of liberal ideas must not be permitted 
to spread. The divine power of kings and emperors 


International Law 119 


was so valuable to the world that it should not suffer 
jeopardy at the hands of turbulent people who wanted 
the liberty to speak, to write, to think, to come and to 
goat their own will. Reaction must be put down by the 
royal and united brethren, and it would have been put 
down and stifled, even in America, but for the timely 
declaration made, in apt terms, by President Monroe 
to Congress in 1823. In Europe the Alliance succeeded 
in its efforts to suppress the clamor of the people, and 
for some years to come the great monarchs could 
contemplate with satisfaction the fruit of their com- 
mon efforts. The Holy Alliance became, in Mr. Mc 
Master’s language, a mutual association to show that 
diplomacy was less selfish or kings less ambitious, or 
international law more certain or more efficient than 
before the articles had been signed. 

Their failure to improve the moral character of 
international relations should not be deemed of any 
significance except to show that spasmodic attempts, 
born of temporary excitement and peculiar surround- 
ings, accomplish but little, in the long run, for the 
improvement of mankind. Self-interest, self-preser- 
vation, and a prudent apprehension of disastrous 
changes are not the only factors in the solution of 
weighty problems. They may, in a measure, be 
productive of good results where wholesome fear acts 
in the direction of self-restraint. It is manifest that if 
all the crowned heads of Europe had, at that time, 
agreed to administer the weighty matters entrusted 
to their hands on general principles of enlightened 
Christian ethics, and had respected the obligation of 
their mutual bond, the world would have been better 
and wiser and happier. And so would society be 
better and happier if all the members joined together 


120 International Law 


in a solemn league to obey the Decalogue and live up 
to the sublime heights of the Sermon on the Mount. 
But the practical difficulty would probably arise out 
of the failure of men to overcome the laws of nature 
which prompt them to violate the moral laws, not- 
withstanding their promises of amendment. For- 
tunately, courts and officers of the law are present to 
supplement the imperfect execution of excellent in- 
tentions where individuals are concerned, but this 
important element is lacking where royal heads find 
mischief for royal hands to do. So the emperors 
and kings of the Holy Alhance might adopt noble 
maxims of conduct, with excellent intentions, and 
fail to carry them out with equally excellent inten- 
tions; they were the lords of the occasion, the masters 
of the situation, and, worse than all, the sole inter- 
preters of the rules which they professed to follow. It 
is hardly necessary to say that conscientious men 
have committed atrocious acts with unimpeachable 
motives, and have found in the sublime precepts of 
religious faith apologies for measures which are written 
in crimson on the pages of history. It is not enough, 
then, to find the masters of the world setting out to 
reform international relations according to the most 
approved rules. Certain plants, and those the most 
enduring, are of slow growth. They thrive on the 
summer rains and the summer heat, but they grow 
strong and enduring only when they are able to stand 
the test of storms and cold. No law, no system of laws, 
no scheme of universal political ethics, may live unless 
it be ratified by experiment and approved by lapse of 
time. The confidence of the world is not easily won. 
The people are not easily charmed by sweet promises 
and dulcet protestations. They realize that the 


International Law 121 


popular view is not always the kingly or imperial view, 
and if they never knew it until the Holy Alliance 
undertook to consecrate the divine authority of rul- 
ers, and to put down by force the aspirations of the 
masses, they then learned that different points of view 
often lead to opposite results. They may well prefer 
slower international processes to sentimental proto- 
cols, and ask, with Anglo-Saxon directness, whether 
the innovations are likely to pay: not a picturesque 
view, indeed, but one that saves trouble in the end by 
forestalling rash experiments. 

It may in truth be said that international law has 
grown, and is likely to develop much as the Constitu- 
tion of Great Britain and the Constitution of the 
United States. These differ, I need hardly state, in 
the important particular that the one is written, and 
the other exists only by tradition. But the difference 
is less in substance than in name, for the stubborn 
conservatism of the English race and their strong 
love for precedent make that stable and enduring which 
would be evanescent and temporary with a differently 
constituted people. Our Constitution, on the other 
hand, left the framers’ hands in outward form a 
skeleton, which it became the duty, most admirably 
discharged, of the Supreme Court to clothe with flesh, 
to inspire with life, and to endow with motion. Its 
written formulation is but a brief declaration of prin- 
ciples to which legislation must conform, but which, 
with its marvellous terseness and pliability remains in 
unfettered activity ready to expand as the necessities 
of a growing nation demand. In this do these consti- 
tutions differ from the hand-made products of con- 
tinental Europe. The written schemes of Sieyés, for 
instance, were ingenious in the extreme, and were 


122 International Law 


written in a few hours; they lacked but one thing,— 
they would not work in practice. The different parts 
of the beautiful mosaic fitted each other with artistic 
exactness, but alas! like a toy boat on a real ocean, 
they went to pieces as soon as they were tried for the 
business of a great people’s political life. So must it 
be with international law. It is in no man’s—no 
nation’s—power to make it or add to it without the 
acceptance of general civilized opinion, and it cannot 
be so accepted until time and experience have demon- 
strated its fitness. That additions must, from time 
to time, be made to any international device cannot — 
be disputed without condemning the actual system to 
death by anemia. If the world moves, any method 
or scheme of adjusting the relations of its component 
parts cannot remain motionless, especially when young 
and vigorous nations are added to the family, and by 
their restless activity disturb the old conditions of 
paralyzed equilibrium. Our own country demands 
recognition by her commanding position as queen of 
the western world. She does not require the ex- 
change of courteous protocols to assure her of that 
recognition. It is said of General Bonaparte that a 
treaty of peace was presented to him after one of his 
dazzling Italian campaigns, in which proposed treaty 
was an express recognition of the existence of the 
French republic. He struck out these words, be- 
cause, as he said, the French republic, like the sun, 
needed no such acknowledgment; she was, like the 
sun, visible to all mankind. The Republic of which 
we are citizens does not need to be told what she is, 
nor what her rank, nor how far her fiat is the law 
of two continents. She cannot be ignored, nor her 
legitimate influence minimized. It is not too much 


International Law 123 


to say that no revision of ancient rules devised by 
Grotius and Puffendorf and Vattel will be complete 
without amendments and additions from her. To 
ask nothing that is not right, to submit to nothing 
that is wrong, was always a rule of our Government, 
and is to-day. We shall be wise and remain strong if 
we adhere to it. In the catechisms of Napoleon’s day, 
the children were required to give special thanks, be- 
cause the Almighty in His mercy had vouchsafed so 
excellent a ruler to France. Let us hope that, as 
years roll on, the world shall become so much happier 
and better because of our being part of it, that other 
nations may, with grateful hearts, bless the Provi- 
dence which inspired the fathers with wisdom to lay the 
corner-stone so well. It only remains for the children 
to love the work thus begun with earnestness enough 
to preserve and protect it against enemies from with- 
out, and the more dangerous foes within. Then shall 
our mission be in the way of glorious accomplishment. 

International law, if it is to keep step with the 
progress of mankind, must take into account the fact 
that the balance of power has passed from the throne 
to the people. Whether for good or for evil, the 
royal or imperial crown, with scarce an exception, is 
held by gift. We see, at times, glimpses of medieval 
reverence for the great office of ruler over a nation, 
and the ruler himself sometimes astonishes or amuses 
the world by medieval claims to a Heaven-bestowed 
dignity. But the gracious Queen who has so worthily 
and so long held the sceptre of Great Britain claims 
no title to her dignities and her palaces, outside the laws 
of the land. No one fact in modern history shows 
more strikingly the changes wrought by time than the 
fact that the successor of Queen Elizabeth is queen by 


124 International Law 


virtue of an act of Parliament, which may be unmade 
as it was made; while across the channel the palaces of 
Louis XIV. are occupied by a reputable gentleman, 
recently engaged in business, who, for a brief term of 
seven years, executes the bidding of a plebeian legis- 
lature. When we recall the fashion in which the Virgin 
Queen and Le Grand Monarque treated the law-makers 
of their day, we need no other reminder of the radical 
changes that have marked the transfer of power from 
the king to the people. 

Obviously such vital differences in political con- 
ditions, the world over, must have their influence on 
international law. The moulding of the system has 
passed into other and possibly ruder hands. The 
niceties of diplomacy have assumed another shape, or 
more properly have disappeared with the elegant 
forms that accompanied and made part of them. 
Directness of speech, open explanation, frank state- 
ment of what is denied or objected to, are becoming 
part of international law, or at least of international 
procedure. We, of America, have done our inter- 
national business without the intervention of pro- 
fessional go-betweens, and we have not thus far had 
cause to complain that we had no experienced di- 
plomatists to embarrass our relations with foreign 
powers by their ponderous and dilatory methods. 
The secrecy of the old style cannot exist when the 
Press is free. We cannot well imagine the king of one 
nation subsidizing the king of another for any length 
of time without a publication of the fact, with its 
necessary consequence of putting an end to the rela- 
tion of master and servant. Yet Charles II. was the 
recipient of a salary in French gold, which he spent 
with royal profusion in every way, except in the way 


International Law 125 


of benefiting his people. This fashion of regulating 
foreign relations and of settling international differ- 
ences may be said to have disappeared. 

That the gross form of bribery here alluded to was 
exceptional may be granted, but it cannot be denied 
that the personal relations of sovereigns had much 
to do with the intercourse between nations, and to 
that extent affected international law. The situation 
of a whole people might be changed, and often was 
changed, by a marriage. The kingdom of France 
really became such by happy alliances adding duchies 
of vast extent to the central power with as little 
ceremony as a neighbor’s farm is annexed with its 
chattels to the lands of an owner who desires terri- 
torial expansion. France virtually annexed Spain 
when the king’s son, Philip, ascended the Spanish 
throne. But a war of gigantic destruction followed 
the mere suggestion made in our day that a German 
prince might take the place which Philip once filled. 
It is true that the suggestion was afterwards with- 
drawn, and the wrong of initiating a war without 
necessity was imputed to France. Yet it cannot 
fairly be doubted that if the attempt had been made 
to place this German prince at the head of the Spanish 
nation, the principles of international law, as generally 
accepted and understood, would have been violated. 
For if there be one principle which stands out to give 
the appearance of substance to this vague and shadowy 
law, it is that the equilibrium of power must not be 
disturbed. This may be said to be the fons et orzgo of 
the whole plan. The religious observance of the rule 
is indispensable. Noli me tangere is the golden maxim 
which permeates and gives life to it, and general ac- 
ceptance; a maxim, too, that is not confined to the 


126 International Law 


narrow limits of an actual injury, a direct assault, but, 
with the elastic force of every great principle, insists 
upon investigating remote and apparently unim- 
portant facts. And it is, indeed, vital, for its acknowl- 
edgment alone preserves the peace of the world. How 
long, think you, would Holland retain her independ- 
ence but for this? She is filled, it is true, with a brave 
and patriotic people, but the German Uhlan would 
water his horses in the picturesque canals of The 
Hague, and the Watch on the Rhine would be sung in 
that ancient city’s cafés long before the dykes were 
opened to drown the irresistible foe. How long would 
Belgium retain her autonomy and flourish in art and 
wealth and a prosperity all her own, if the tempting 
prey were opened to the neighbors who, in the past, 
made her a part of the French nation? But to touch 
Holland, or Belgium, or Switzerland is to disturb the 
equipoise, and an attack upon either would be re- 
sented as swiftly in London as though a French or 
German fleet were threatening the coast of England. 

All which amounts to no more than saying that self- 
protection and self-preservation constitute the corner- 
stone of modern international law. This instinct is as 
strong in communities as in individuals, and will, when 
aroused by real or imaginary perils, sweep away forms 
and law as worthless encumbrances if they interfere 
with their first duty and most valuable right, the duty 
to resist aggression and the right to live. 

Utility is the chief ligament that binds together into 
something like systematic arrangement the provisions 
of international law. In the complicated European 
affairs of to-day, with nations closely approximating 
each other in financial resources and, therefore, in 
military power, some concession by each to the other 


International Law 127 


must be made in the form of self-denial. To live in 
the family of civilized nations, no power shall appro- 
priate the territory of a weaker neighbor without the 
permission of the other parties in interest. This per- 
mission may be obtained by a successful war, as was 
done until and including Napoleon’s time. But he 
closed the era of the great conquerors who dispensed, in 
the hurry of an agitated career, with the usual forms of 
international courtesy. It is not likely that until the 
present system is radically changed, a victorious em- 
peror or king will tear down, build, remodel, patch up, 
or create thrones as the requirements of his policy 
or the importunities of his relatives might require. 
“The House of Braganza has ceased to exist,’ was all 
the notice that he deemed it necessary to serve on the 
parties interested, or on the world in general, when it 
suited him to abolish that ancient family; nor is it 
probable that any other military genius will carry on 
war at the cost of others, and reduce home expenses by 
levying contributions far in excess of the actual and 
necessary disbursements to which he had been put. 
International law has, at least, benefited the world 
in this, that the moral sentiment of mankind finds an 
expression in the practices which civilized nations 
have sought to establish among themselves for their 
mutual guidance and mutual interest. 

It is now chiefly by treaty that accessions of territory 
are had. The advantages of such treaties as those 
which followed the downfall of Napoleon are manifest. 
They consecrated a distribution which silenced op- 
position by its generous equity. That generosity was 
exercised at the expense of other than the contracting 
parties; but the equilibrium that had been so unduly 
disturbed must be restored, and it was done probably 


128 International Law 


with as little harm to the smaller factors in the problem 
as was consistent with its solution. 

Returning for a moment to the beginnings of inter- 
national law, we find that self-preservation and utility 
are at its source. Indeed they constitute its razson 
d’étre. For while we may say that it is the preserver 
of peace, and the refuge of the weak, the same story 
is told under a changed name. The strength of the 
weak lies in the jealousies of the strong, and the 
preservation of peace in the greater benefits that na- 
tions can reap from the quiet pursuits of commerce 
and agriculture. A proper apprehension of the ad- 
vantages which nations derive from a husbanding of 
their resources, and an economy of men and treasure, 
does more for the happiness of the world than the 
most voluminous treatise on the rights of war and 
peace. An intelligent book on political economy is 
really a demonstration of war’s futility. The value 
of a human life may be computed in money, and 
shake the purpose of the potentate who meditates a 
war. It is not only of the royal head of the animal 
kingdom that we may say, “A living lion is worth two 
dead.”’ It is true of human beings as well. The 
would-be conqueror may not be deterred by humani- 
tarian pleas, nor hesitate because of brave men’s 
blood and women’s tears, both shed for his caprice. 
And yet he may hesitate at the cost of an armed 
man if he computes the value of the man as well as the 
expense of the accoutrement. 

Nor can it be fairly gainsaid that, with our pro- 
gressive civilization, which means the more general 
diffusion of education, a broader, finer, stronger moral 
sense has grown up among the nations. It shows 
itself in many ways, and breathes its purifying spirit 


International Law 129 


into the dry tomes of the international law writers. 
War has lost some of its horrors because humanity 
protects the wounded prisoner and cares for him as 
though he were a forgiven foe or a recovered brother. 
Human slavery is dying out, and the traffic has be- 
come almost a record of the past. Unprovoked attack 
upon a weaker enemy is less frequent than of old, not 
only because of the danger of arousing defenders for 
the weak, but because of a decent regard for the 
opinions of mankind. One short century has wrought 
a change in these respects that almost staggers belief. 
The shocking absence of humanity that once char- 
acterized the conduct of refined nations seems incon- 
sistent with anything but barbarian depravity. And 
we may, perhaps, venture the boast that at no time 
has the intercourse between members of the human 
family been so near the Christian ideal, far removed 
though it still be from its moral beauty, as it has been 
since the people have been the predominant element 
in the conduct of the world’s business. The heart of 
the people beats with more generous pulsations than 
that of the artificial society which acquired and so 
long kept control of human actions. Torture was 
never the people’s instrument of justice, although it 
was the kingly implement: cruel and unusual punish- 
ments disappeared from the statute books as soon as 
the people’s strong hand wrote the laws. War became 
humanized, so far as its inherent brutality permits, as 
soon as the people became the masters. For it was 
of old the people who suffered the torture, fought the 
battles, paid the taxes, and bore the burden of the 
day and the heat. Small wonder if they have learned 
that they could improve upon the old devices when 
the class that made the harsh laws and imposed the 


9 


130 International Law 


heavy burdens never felt the edge of the law nor the 
weight of the burden. 

With the people’s reign new ideas have come to the 
front, and old ideas have gone to the rear. ‘True bi- 
partite, tripartite, and quadrilateral treaties and al- 
liances may still be made, and the people may not 
be told to what they have been committed; but even 
in those countries where such contracts are made, it 
is not quite certain that when the decisive moment 
comes the masses may be moved with sheep-like do- 
cility. Then, too, a new and disturbing element has 
entered the fold,—a young, restless, growing nation, 
impatient of forms, a lover of action, a partisan of 
justice. If left alone one people will not hate another 
people. The resentments of monarchs are not always 
echoed in the hearts of their subjects. Our United 
States has given a practical example of what may be 
done for peace by a nation that is able to be strong in 
war, for we have an international law binding for- 
ty-five States together under a written treaty. Our 
differences are settled by a tribunal of arbitration that 
deals with the communities as freely as it would deal 
with the individuals that compose it. An experiment 
was once made outside the jurisdiction of this tribunal 
only a generation ago, and a great lesson learned. 

That there may be grave peril in a situation which 
gives free scope to the generous impulses of a strong 
nation cannot reasonably be denied. Impulse, even 
when directed to a noble purpose, is often the enemy 
of right reason, and defeats its ends. It is in the na- 
ture of things that a story of wrong, persistent and 
unredressed, should rouse our people to wrath and 
tempt them to chivalrous, even ifimprudent action. A 
great republic, unembarrassed by the barnacle growth 


International Law 131 


of ages, lightly equipped, because free from oppressive 
debt, earnest for liberty, and hating oppression, is 
prone to generous folly that makes the Old World 
stand aghast. The cries of our neighbors are quickly 
caught up by ready ears. Differences of race are 
soon forgotten when our sympathies are plausibly in- 
voked. We are, perhaps, too ready to love our neigh- 
bor as ourselves. A noble maxim in private life and 
one which no doubt should find an honorable place in 
the international horn-book. For international law 
is based on, made up of, and permeated with, moral 
law. It is nothing, if not moral. 

The eminent Chief Justice of England says that 
“the ultimate aim in the actions of men and of com- 
munities ought to conform to the divine precept— Do 
unto others as you would that others should do unto 
you’’”’; an exalted, but, perhaps, not wholly safe 
guide in the intricate labyrinth of international rela- 
tions. While such a precept, if followed by individuals, 
would raise society to a plane that it has never yet 
attained; while it may be followed by all who under- 
stand it to be the essence of the precept of charity, the 
application of the Golden Rule in the larger matters 
of the world might be destructive of all pretence of 
international law. Unrestrained emotion, however 
generous, might and would be indulged in at the ex- 
pense of nearly every rule that jurists have taught, 
from Grotius and Puffendorf to Story and Wheaton. 
Law,—every law,—means restraint and involves self- 
denial. When these States were colonies in rebellion, 
they longed for, sought, and obtained foreign inter- 
vention. Does it follow that the mature nation shall 
do to others what it then desired others to do for it? 
The point of view of contending nations is naturally 


132 International Law 


different. If to-day a foreign power seeks by force to 
retain in subjection its reluctant colonies, how shall 
the Golden Rule be applied? Which of the con- 
testants shall receive the benefit of its application in 
the form, not only of sympathy but of moral and 
physical support? We have been at one time the 
rebellious colonies, at another the power that under- 
took to reduce its rebels to submission. In the one 
case the Golden Rule meant, ‘‘ Help those who struggle 
for freedom’’; in another, ‘“‘ Hands off!’’ Non-inter- 
vention in the affairs of other communities is one of 
the few principles that are generally recognized as 
essential to the peace of nations, and yet it is hard 
to keep the blood of a free and magnanimous people 
from tingling and rushing to fever heat when the cries 
of a despairing neighbor rise in protest against op- 
pression. Yet our Washington, with prophetic vision 
of the dangers lying in wait for his countrymen, 
warned them against listening to the voice of natural 
and brotherly sympathy. What, then, becomes of 
the Golden Rule, if it is circumscribed by expediency, 
fettered by law, and condemned in practice by “ those 
rules to which nations have agreed to conform in their 
conduct toward one another’’? 

This apparently pessimistic view of the applicability 
of moral precepts to the regulation of international 
affairs only serves to prove that the element of law 
enters but inadequately into the system that we are 
considering. Where the municipal law is concerned 
no such confusion and difficulty arise, for the statutes 
interfere to prevent the over-zealous moralist from 
indulging, to the detriment of others, in his desire to 
promote the welfare of his neighbors. He may give 
his fortune and his time or his life to the improvement 


International Law 133 


of his brethren, but even philanthropy has its legal 
limitations. The best, the most exalted motives will 
not give immunity to the violation of a statute. The 
wings of charity are often clipped by the shears of 
cold-blooded legislation. Wrongs often go unredressed 
because a Christian Quixote may not do to his noisy 
or peace-disturbing neighbor what his own construc- 
tion of the Golden Rule would suggest as most expe- 
dient. 

It may appear from what precedes that the sanctions 
of international law are at least imperfect and insuffi- 
cient, if they exist at all. It may be accepted as a 
fact, not encouraging, perhaps, to the student, that the 
system is only an approach to a system, the law only 
an approximation to a law, the rules no more than ab- 
stract precepts which may be violated with impunity, 
because there is no tribunal vested with the power to 
restrain or to punish the violator. But imperfect as 
the device may be, it deserves careful consideration. 
Its aim is high and its purpose beneficent. Itis of some 
avail parcere subjectis, though it has never yet been 
efficient debellare superbos. It is in effect an attempt 
of Christian civilization to propose humane rules for 
the international regulation of the affairs of the several 
nations. It has not yet taught forbearance to the 
mighty, nor given assurance of justice to the weak, 
but it has striven to do both, and in some measure it 
has succeeded. It has not abrogated war, but it has 
taught the value of charity, even when the laws were 
silent. It has not abolished human slavery, but it has 
brought nations to a common understanding that the 
traffic in human beings should be, in the common in- 
terest of their self-respect, crippled if not destroyed. It 
has founded no tribunal, but has developed a monitor— 


134 International Law 


public opinion—which may remonstrate and denounce 
in a voice that goes around the world. And finally, 
when clouds of dissension arise upon the horizon, it 
teaches, by its very misnomer, that there is a class of 
men who may be trusted to solve weighty problems 
more safely and less expensively than those who rely 
upon force to persuade, and gunpowder to convince. 
The lawyer—or as he is finely called when his client 
is a nation, the jurist, at the opportune moment, steps 
upon the scene, and the halting march of progress is 
resumed, the wheels of commerce continue to revolve, 
protocols take the place of declarations, pleadings of 
bulletins, and legal opinions of proclamations. No 
ghastly list of dead and wounded sickens the homes of 
the contestants. When the fight is over, no healing 
processes of time and taxation are needed to repair 
the waste, for reason has had the last word and has 
reached a result quite as certain to be just as though 
the debate had been fought out at Waterloo, Gettys- 
burg, or Sedan. If this be one of the fruits of this 
so-called science, it is indeed a blessed science that 
deserves to live forever. 





HISTORY AND BIOGRAPHY 


135 


Oe ow 
a Ts ik Ms 
1eeaA 


met OS 

COR 

oP Paar p 
ay 


Ban 

Dist) 

\ Hy Neate iy 
AEs oe , ie Bi ie! iy ah 
i Val : ; Wa 4 ua x : a f 


ih oe 
Oe ae iv 


eR EAH ROOM CLONE Mk aaa 
NCP ate | m 


“aa i ne 
iA yay ae bs 


ANAS 


Wh Ae 


pe) mi | a 3 a i Me Perk a) 


(yh ie 
‘ ; 7 ey aye » 
5 


AM taLe Nt) | 
te Sk 
nt Pe Ai 

i ; A 








V 


CHRISTOPHER COLUMBUS ! 


field to the historian of a speculative and 

imaginative turn of mind. The story abounds 
in doubts and rests upon a nice calculation of proba- 
bilities. The writer must make a free use of the 
potential mode, and may only indulge in positive 
statements with misgivings as to his own accuracy. 
While Homer has been claimed by seven different 
cities, all of them anxious to secure the fame of having 
given him birth, Columbus may boast even more. 
Genoa seems to be the first in the race; to make her 
claims sure a noble marquis, a few years ago, pointed 
out a venerable structure in which he asserts that the 
great discoverer was born. As nothing can be plainer 
than the fact that the marquis speaks only upon in- 
formation and belief, no imputation upon his veracity 
is cast by those who name other claimants as entitled 
to the much coveted honor. Unless the Genoese 
champion may emulate Pythagoras, who assured his 
hearers that he had been present, in the flesh, centuries 
before, at the siege of Troy, in the person of Euphorbus, 
and proved the assertion by pointing out the shield 


ike early life of Columbus offers a most alluring 


1 An address: before the Catholic Club and the United States 
Catholic Historica] Society, Carnegie Hall, October 11, 1892. 


137 


138 Christopher Columbus 


which he then wore, we require other evidence to sus- 
tain the marquis’s assertion. If, however, Columbus 
was not born in Genoa, who knows whether his eyes 
did not first open to the light in Corsica? At least a 
learned abbé so states, and the town of Calvi has given 
earnest of its convictions by erecting a monument to 
assure posterity of the fact and to place it beyond the 
shadowy regions of historical controversy. 

If we may without discourtesy venture to dispute 
the abbé and the monument and turn our back on 
Corsica, we shall find Cucaro, Cugureo, Piacenza, and 
other towns, rapidly increasing in number as time rolls 
on, to vindicate their claims. It is not here necessary, 
fortunately for us, to settle the dispute. The part of 
wisdom is rather to follow the example of the Chicago 
Fair, and to photograph all the rival sites, with gen- 
erous impartiality and unreserved confidence in the 
judgment of the citizen who shall undertake to decide 
the question for himself. It is enough to say here 
that Columbus, more fortunate than Homer, was cer- 
tainly born and lived and died—so far as such men 
as Homer and Columbus ever die. 

So, too, it may be said by hasty and reckless writers 
that Columbus was of Italian descent, but even here 
doubt throttles assertion and bids it pause. Is it 
quite sure that Columbus did not owe part, at least, of 
his daring and courage and tenacity to the French 
blood, which, it is stated by some authorities, flowed 
in his veins? Not a mean and plebeian blood, but 
a bluish and gentle fluid, that had run in bright 
channels through the bodies of gallant men and fair 
women. An admiral in the French navy would, ac- 
cording to some, be responsible in the far past for the 
propensity, invincible and enduring in Columbus, to 


Christopher Columbus 139 


scour the seas. A clear case of atavism, even if the 
French ancestor was a bold pirate as well as a noble 
admiral. Again it is our good fortune to-night that 
we need not decide the question. But I deem it my 
duty to warn you that no inference unfavorable to 
this theory is to be drawn from the fact that French 
writers lay no stress upon the possible circumstance 
that Columbus may have been warmed and invigor- 
ated by the same blood as themselves. They exhibit 
a curious apathy and indifference in this respect. Do 
they not pass without notice and without a proper ex- 
hibition of exultation the well-ascertained truth that 
Washington himself was one of their kinsmen? Is it 
not probable that his strong, cold nature was occasion- 
ally warmed up to its boiling point by an ebullition 
wholly French? If the great, strange oaths that he 
swore at Lee on the plains of Monmouth had been 
accurately preserved, they might throw some light 
upon the subject. What shall we say of a nation that 
allows Scotland to capture St. Patrick and claim him 
as her own, without regard to the truth of history or 
the probable preferences of the good saint himself? 
It is idle to pursue this digression; it was only in- 
tended to explain why the possible right of Columbus 
to claim a French ancestry was not diminished by the 
negligence of French writers of history to uphold it. 
Wherever born and from whatever parent root he 
sprang, Columbus was, for the time, a well educated 
man. Iam tempted to say a well educated gentleman, 
and upon the whole conclude that this term may be 
safely adopted, although it is a matter of doubt 
whether his parents were of noble rank or simply 
carders of wool. This subject is not one of great im- 
portance, however, if we adopt the suggestion made 


140 Christopher Columbus 


by an ingenious writer that wool-carding was a very 
reputable business, in which persons of birth and 
education not infrequently engaged, so that the two 
theories may be happily reconciled by the conclusion 
that neither excludes the truth of the other. 

To decide where Columbus received his early edu- 
cation is comparatively easy. There are but two 
cities seriously claiming the title of pedagogue to the 
future discoverer. These are Genoa and Padua. The 
strongest argument thus far advanced in favor of the 
latter is to the effect that Genoa being imperfectly 
equipped with educational appliances, he must have 
imbibed his learning at Paduan fountains. This is 
very much as though one were to say, of any learned 
native of Brooklyn or Philadelphia whose Alma Mater 
was unknown, that he must have studied at Columbia 
College. 

Having thus settled that Columbus was born in 
Italy or Corsica, that he was a descendant of French 
or Italian ancestors, that he was born of noble though 
wool-carding parents, and educated at Genoa or 
Padua, and without attempting to fix the date of his 
birth as utterly beyond our ability to establish, the 
remaining work before the student of the great man’s 
life is comparatively easy. The doubts and difficulties 
that beset us are no greater than those that arise 
when we deal with others of the world’s great children. 
We may trace his struggles and trials, sympathize 
with him in the bitterness of his disappointments, 
marvel at the unflinching courage and tenacity of his 
purpose, and follow him, almost day by day, from the 
moment when he stepped on his puny caravel to the 
hour of his death. 

It has been the fashion of many admirers of Colum- 


Christopher Columbus 141 


bus to look for the elements of a special inspiration in 
his life, labors, and successes. It has been assumed 
by them that his fame would be magnified if he were 
shown to be the special object of a divine selection for 
the accomplishment of great ends. That he was 
prompted, guided, directed, and protected by divine 
providence, and that without this aid he would have 
failed in the accomplishment of his purpose, is merely 
to state a proposition in which all believers in the 
ever-present influence of a divine will may acquiesce. 
But there is nothing to justify the contention that 
Columbus, like Joan of Arc, was called by an irresist- 
ible command to perform a task which he was not in 
every way, by nature and education, fitted to perform. 
The little Maid of Orleans, who left her peaceful home 
to save her country, with no knowledge of war, no 
skill in arms, no taste for shedding human blood, 
may well stand before posterity and challenge univer- 
sal homage and tender admiration for deeds that 
exhibit the luminous traces of special inspiration. It 
is quite as easy to believe her own pathetic story as 
to account in any other way for the development of 
the plain, modest, pious, peasant girl into a skilful, 
brave, and successful warrior. The two cases, of Joan 
and of Columbus, may serve as illustrations of the 
dividing line between that impetus which derives its 
sole force and origin from an unseen and providential 
cause and the natural, logical, and expected result of 
genius and courage, working under God’s providence 
to a definite and well-conceived end. Columbus had 
received the gift of genius, which is of itself a sort of 
inspiration to accomplish great things. Genius is not 
the result nor creation of education, nor the fruit of 
toil, nor the gift of ancestry; it is a spark that is 


142 Christopher Columbus 


blown into a flame, without the consciousness of its 
possessor, and which then lights up the world, for good 
or for evil. Alexander, Hannibal, Cesar, Mahomet, 
and Napoleon stand apart from the rest of the world 
as men thus gifted. Many would add Columbus to 
the list, although his title to be ranked in such com- 
pany is not universally conceded. 

We are naturally disposed, after these four hundred 
years, looking through the dim veil of commingled 
history and romance, to treat the discovery of America 
by Columbus as a marvellous and unequalled event, 
which only a rare combination of circumstances could 
produce. It is assumed that there was little in the 
past history of the world, or in the knowledge then 
held by learned men, to justify the belief that the ex- 
tremities of the world had not been reached. But 
such delusions cannot withstand a moment’s scrutiny. 
The marvel is, not that the discovery was made, but 
that it had not been made long before. It was as in- 
evitable that it should be effected at an early date as 
the discovery of printing was sure to follow the in- 
vention of paper. To use a common but expressive 
form of speech—it was in the air. Proof abounded 
that there was an undiscovered land far to the west 
and that a continent, supposed to be the continent of 
Asia, might be directly reached by sailing in a westerly 
direction from Europe over the Atlantic. Evidence 
sufficient to convict the strange land of being a reality 
had been repeatedly furnished, in almost conclusive 
form. Navigators driven by storm beyond the Azores 
had found curiously carved woods, manifestly of some 
other than European origin; a large canoe, capacious 
enough to hold twenty rowers, had been picked up at 
sea, and also strange trees of a kind unknown to 


Christopher Columbus 143 


Europeans; more striking than all, perhaps, the 
bodies of men, of a dark color, had been thrown up by 
the sea and had shown that somewhere in the west a 
race of human beings would be found, differing in 
appearance from any then known, whether of European, 
Asiatic, or African origin. Marco Polo, the great 
traveller, had returned from his explorations and 
told strange tales of the countries that he had visited, 
Tartary, India, China; these were supposed to extend 
as far as the continent now known as the continent of 
America. 

But neither the physical proofs thus furnished by 
flood and tide and storm, nor the narratives of travel- 
lers, could extirpate the deeply rooted prejudices of 
men and overcome the invincible ignorance of the 
great mass of mankind. 

Men had eyes to see, but the lessons taught by the 
bodies of dead men and strange plants and beasts, 
they could not read. They had ears, but they would 
not listen to the tales of travellers, preferring, as 
sluggish indolence always does, to call them les and 
thus end the debate. 

We must remember, however, that the world was 
not plunged in absolute ignorance as to the conforma- 
tion of the earth. The idea that its form was spherical 
was old and accepted by learned men. Ptolemy and 
the geographers of Arabia had long taught that the 
earth was in the form of a globe and might be circum- 
navigated. The lodestone and astrolabe had been 
invented and had made navigation comparatively easy 
and safe. 

Nor was this all. The fact must have been known 
to many that there was a new land to the west of 
Greenland. The hardy Norsemen had put their foot 


144 Christopher Columbus 


upon it five hundred years before Columbus turned 
his back on Palos. They had made repeated voyages 
between Greenland and Iceland. Even were we not 
assured by positive proof that such was the fact, we 
must have drawn the conclusion from irresistible 
evidence. The dauntless sailors who left Norway to 
settle in Iceland, and from Iceland reached Greenland, 
were not the men to permit the narrow seas to separate 
them from the continent that was within easy reach. 
Even had they been willing to leave the neighboring 
ocean unexplored, some beneficent storm from the 
northeast must have forced them into a reluctant 
knowledge of their neighbors. The distance between 
Iceland and Greenland is 750 miles; America is but 
2so miles from Greenland. The old Vikings, who 
were never so thoroughly at home as when they trod 
the deck of a stout ship in a storm, are not open to the 
reproach of having feared to test the mysteries of these 
unknown waters. The record of northern voyages is 
too well known to leave a doubt as to their having been 
made and having resulted in the discovery of America. 
In the year 986, Bjorne Herjwissen saw the land which 
we now call New England. It was originally called 
Vinland on account of the grapes that were discovered 
there and said to produce good wine. So satisfactory 
and complete was the evidence of the existence of this 
remote land, that Pope Paschal II., as early as the year 
I112, appointed Eric Upsi Bishop of Iceland, Green- 
land, and Vinland, and the bishop, it is said, actually 
visited Vinland in person during the year 1121. While 
we have no accurate data as to the spiritual condition 
of the new diocese, we know that it was extensive 
enough in point of area. It certainly is interesting to 
read that nearly four hundred years before Columbus 


Christopher Columbus 145 


and his people undertook to evangelize the peaceful 
inhabitants of the west, the Church was solicitous 
enough to send out one of her servants to teach the 
natives the truths of the gospel, and to bring them 
within the fold. Unfortunately, the great plague 
that well-nigh depopulated Norway put an end for 
many years to schemes of distant philanthropy and 
foreign adventure. 

Nor was Vinland the only section of America on 
which the European had set his foot. “Great Ire- 
land”’ antedates even these early attempts and had 
long been discovered by men from Ireland when Are 
Marsen visited that region in 983. They occupied the 
country south of the Chesapeake Bay, including North 
and South Carolina, Georgia, and East Florida. When, 
in 999, Gudlief Gudlangson and his sailors were driven 
by storms to America, they landed in an unknown 
region where they were at once met by several hundred 
natives whose language was apparently Irish. The 
methods of these natives were not as courteous and 
civilized as those of their modern descendants, for they 
at once seized the foreigners and bound them, thus 
forcibly signifying their doctrine of home rule and 
their determination to retain the country for them- 
selves as the rightful owners thereof. They did not 
harm the unwilling invaders of their territory, how- 
ever, but allowed them to depart unmolested, after 
signifying with marked emphasis that it would not be 
safe to remain—a piece of wise conduct that might 
have been emulated with advantage by the natives 
who afterwards received some of the followers of 
Columbus with open arms. 

From the historical fragments left us it is almost 
certain that Columbus knew of the existence of a 


10 


146 Christopher Columbus 


continent in the far west. He was by profession a 
geographer and earned his living by drawing and selling 
charts that were highly esteemed for their accuracy. 
The study of the physical world was his favorite pur- 
suit. It is to be presumed that he knew of these 
subjects all that the learned men of his day had ac- 
quired; with these elements of fact to work upon, his 
ingenious mind could reach but one conclusion. A 
strong additional circumstance lends weight to these 
considerations. There is no doubt that in or about 
1477 Columbus visited Iceland, which has been 
termed the hinge upon which the discovery of America 
turned. There he must necessarily have learned 
something of the traditions which preserved the old 
Norse discoveries from oblivion. Can it be supposed 
that he, filled as he was with the ambition of making 
his way to India through undiscovered seas, never 
heard of Vinland nor of the bishop appointed by 
Paschal? Then, too, Adam von Bremen’s account 
had been published in 1073, if we may speak of publi- 
cation before the invention of printing, and _per- 
petuated the brave deeds of the Norse navigators. 
No wonder then that Columbus spoke and acted as 
though he knew rather than conjectured, calculated, 
or imagined. ‘‘When he had formed his theory,”’ 
says Washington Irving, “it became fixed in his mind 
with singular firmness. He never spoke in doubt or 
hesitation, but with as much certainty as if his eyes 
had already seen the promised land.”” A very probable 
statement and a very natural condition of mind if he 
had read of the Norse discoveries, the Irish settlement, 
the papal appointment of a bishop to Vinland, and 
was familiar with the household traditions of the 
Norsemen. 


Christopher Columbus 147 


We may, then, assume the truth of the proposition 
that the condition of the public mind was such that 
an attempt to penetrate the mystery of the western 
seas was inevitable, and the further proposition that 
of all men fitted for the task none was more competent 
than Columbus. That he should have become pos- 
sessed of this one fixed, absorbing thought was not 
strange. He was ambitious of honors, title, wealth, 
power, and fame; all these lay on the route to India, 
the land of Solomon’s Mines, the Ophir of boundless 
promise, the undiscovered country which held in its 
bosom treasures vast enough to challenge the wildest 
imagination, to realize the wildest dream. 

Why the effort was so long delayed, why Columbus 
himself, eloquent, learned, enthusiastic as he was, 
wore away twenty long years in the vain attempt to 
enlist royal sympathy in favor of his scheme, seems 
difficult to account for, but some reasons for the 
strange lethargy may be advanced. 

The natural fear of the unknown has always fed 
upon a superstitious fear of Providence. The Roman 
poet strongly and beautifully expressed it when he 
condemned the restless spirit of men who leaped over 
the natural boundaries created by Jove—who dared 
to sail over the waters which the deity had interposed 
as a barrier between dissociated continents and who, 
by their impious disregard of divine laws, challenged 
Jove’s wrath and never permitted his thunders to 
intermit their destructive bolts. A feeling somewhat 
akin to this still survived and was only beginning to 
yield before a more general diffusion of enlightened 
Views. 

The proposed attempt to brave the horrors of the 
unknown ocean was looked upon by many as impious 


148 Christopher Columbus 


and dangerous, at one and the same time. The anger 
of the sea was less to be dreaded than the wrath of its 
Master. Men had been warned by divine lips that 
they should not tempt the Lord their God; what was 
this bold venture into the very jaws of death but a 
challenge and a defiance to the Almighty? Scientific 
reasons were often brushed aside even by learned men. 
Some of these, while admitting the rotundity of the 
earth, still urged the rashness of the attempt. Grant 
that the world was round, grant that a hardy navigator 
might sail far into unknown regions, the moment 
would come when, the antipodes being reached, the 
doomed ship must drop from the sea that had thus 
far sustained her weight and, plunging helplessly into 
infinite space, meet a fate as dreadful as it was deserved. 
And if, by some strange and hitherto unknown physical 
law, the fated bark still clung to the slippery waters, 
how could it be expected that, in defiance of all prin- 
ciples and all rules of physics, she would climb back, 
upon the liquid and treacherous hill, to the point 
whence she had started? Thus, a little knowledge 
proved a dangerous thing; it gave the objector the 
prestige of scientific acquirements in dealing with the 
matter, and he was only the more dangerous because 
he was somewhat less ignorant than his followers. 
The arguments from Scripture were especially dan- 
gerous, and were perhaps the most difficult to answer. 
They came from pious and good men, who placed their 
own narrow interpretation upon isolated passages, and 
gave them a meaning which condemned such at- 
tempts as blasphemous. The prophets and the fathers 
of the Church were freely quoted as being conclusively 
opposed to the plans of Columbus. Lactantius was 
cited as saying that it was the height of absurdity to 


Christopher Columbus 149 


pretend that there was such a part of the world as the 
antipodes were supposed to represent, where men 
walked about with their heels in the air and their heads 
down; where human beings had their feet directly 
opposite ours; where everything was reversed, the 
trees growing with their roots in the air and the 
branches in the ground. No one could deny that such 
propositions were very absurd, and in fact incredible, 
if faith in the antipodes obliged belief in such an 
upheaval and reversal of physical laws. Then, too, 
it had been said that all men came from Adam, which 
was surely not the case if there was another race of 
men in that fabulous country. Finally, some learned 
doctors, applying a figurative test to the exigencies 
of the discussion, cited the passage of the Scriptures 
wherein it is stated that the Lord stretched the skies 
over the land like unto a tent, which was clearly im- 
possible if the earth was round. At least so they 
argued, and with no small success. 

Against these and other such adversaries, Columbus 
waged his battle. He was himself a pious man, deeply 
imbued with the doctrines of the Church. His reply 
was, therefore, such as a devout Christian would ven- 
ture to offer; it was not the sneer of a scoffer, nor the 
challenge of an infidel. He sought to reconcile the 
truths of Scripture with those which he gathered from 
science and experience, and to deal gently and patiently 
with ignorance and prejudice, whatever their origin 
and whatever the garb in which they were clothed. 
He was eloquent, enthusiastic, learned, and skilful in 
debate; but with all these qualities he might have 
failed in his purpose but for the timely aid of church- 
men whose orthodoxy was beyond dispute. Diego 
de Deza, in particular, a Dominican, subsequently 


150 Christopher Columbus 


Bishop of Toledo, gave him his warm support, and 
lent the color of religious regularity to the advocacy 
of the new cause. Other religious men joined him to 
overcome the opposition that had so bitterly assailed 
Columbus and his strange theories; but even with 
this valuable aid, it was a long and weary contest, that 
wore out the great adventurer’s best days. Portugal, 
Genoa, Spain,—were, each in turn, appealed to. The 
confident hope of a result that would startle the world 
and enrich the promoters of his cause beyond their 
dreams was urged in vain to incredulous ears. In- 
conceivable as was this stubborn resistance to his 
appeals, it baffled him for years, and he would probably 
have ended his days without sight of the promised 
land but for the friend whom a kind Providence 
placed upon his path, when hope was well-nigh dead. 
The prior of the humble convent of La Rabida received 
the weary traveller when his fortunes were at their 
lowest ebb; his charity revived the wanderer when 
with his young son he turned his back upon great 
visions to seek for food and shelter. These, with 
gentle sympathy, the good prior gave from his heart 
to the baffled and dispirited chart-maker. He filled 
him with new courage, started him afresh upon his 
journey, put money in his purse, furnished him with 
letters of commendation to the queen, with fitting 
garments for one who aspired to enter and ask the 
favor of a court; and, more than all, with the assur- 
ance that, be the treatment of that court what it 
might, the door of La Rabida was ever open and ready 
to receive its one-time guest with unfailing love. 
Wherever the story of Columbus is told, the name of 
Juan Perez should be named with reverence. Amid 
all the vanities and petty ambitions of the time and 


Christopher Columbus 151 


occasion, he stands out almost alone as the embodi- 
ment of all that is best in human nature. No selfish 
motives tainted his action. As has been well and 
truly said, the prior gave Columbus his heart, and, 
strange to tell, he never took it back. 

Thanks to Juan Perez, Columbus had audience of 
the King and Queen, an admirably assorted couple for 
the functions in which they were engaged. Ferdinand 
contributed the caution, Isabella the liberal qualities 
necessary to govern the country over which they 
ruled. Isabella was ready to pawn her jewels for a 
worthy cause, if funds could not otherwise be secured. 
Ferdinand would be sure to enquire whether the ven- 
ture was likely to pay expenses and a profit. Isabella 
alone would have wrecked the treasury, with a glorious 
disregard of financial results. Ferdinand would have 
conducted the royal business by strict rules of arith- 
metic, unrelieved by generous diversions or sentimental 
deflections, even if these were calculated to secure 
popular applause and sympathy. He would never go 
to war for an idea, unless the expulsion of the Moors 
be deemed such a one; but there was, even in that 
attempt to drive out the unbeliever, a practical side. 
In their dealing with Columbus, the dual nature of the 
royal association was manifested. Isabella was anx- 
ious to plunge into the adventure, without reference 
to the terms proposed by Columbus; Ferdinand de- 
clined to invest his money except upon such con- 
ditions as would make the risk a reasonable one. It 
must be admitted here that the settlement of the 
bargain, for such it was, involved no deception or un- 
due advantage on either side. Columbus was quite 
equal to the occasion, and quite a match for his 
kingly patron. He was bent on carrying the faith to 


152 Christopher Columbus 


the infidel, on bringing unnumbered heathen wretches 
within the pale of the Church; he was eager to push 
the glory and empire of Spain to the remotest ends of 
the earth. This was the argument ad hominem, or 
tather ad feminam, with which he mastered the en- 
thusiastic and pious temperament of Isabella; but 
Ferdinand was made of harder and more practical 
material. No doubt his feelings toward his unknown 
brethren of the remote west were kind enough, but 
then these people were far away and mysterious, and 
it was not possible to say in advance how lovable or 
valuable they would turn out to be. Then the great- 
ness of Spain and her glory, though dear to the King 
of Aragon, were expensive luxuries to sustain and re- 
quired a surplus in the treasury; glory and a deficit 
were incompatible and inconsistent adjuncts to his 
crown. But when Columbus told him of the treasures 
that he might secure while he saved the souls of the 
heathen, and put his finger, as it were, on Solomon’s 
mines while he extended the Castilian Empire, Fer- 
dinand’s desire for profit was quickened into some- 
thing like sympathy. The parties of the first part and 
of the second part being agreed as to the expediency 
of entering into the operation, the party of the third 
part stated his terms. They indicated in clear lan- 
guage the determination of the explorer to realize a 
full share of the financial benefits likely to accrue 
from the union of the capital to be contributed by his 
associates and the labor to be contributed by him- 
self. He did not betray any undue modesty in the 
statement of his expectations. He required the title 
and privileges of an admiral, the powers and pre- 
rogatives of a viceroy, and ten per cent. in perpetuity 
of the income to be derived from the new posses- 


Christopher Columbus 153 


sions, this income to be paid to him and his heirs 
forever. 

These conditions startled the king, who refused to 
accept them. The titles, no doubt, were well enough, 
and he might consent to ennoble the successful adven- 
turer and his remotest posterity with lavish profusion, 
provided the commission on the possible revenues 
were reduced to a reasonable percentage. But ten 
per cent. forever! The royal conscience rebelled at 
such demands; they far exceeded the limits which 
any subject had a right to touch in negotiating with 
his sovereign. The king was firm and Columbus 
obstinate. Isabella was indifferent to the business 
aspect of the affair. Her motives were of a higher 
order, and to carry them out she was willing to sub- 
scribe to any terms that her intended associate saw 
fit to exact. Her consort was strong enough for the 
time being, however, to carry the day, and Columbus, 
firmly rooted in the commercial instincts of his Genoese 
ancestors—if they were Genoese—once more turned 
his back on the court and once more sought the society 
and counsel of his old friend and helper, the monk of 
La Rabida. 

But once more, as in the past, the ready hand and 
heart of Juan Perez did their work, and Columbus, 
with renewed courage and hope, started to interest 
the French monarch in his plans. Would the latter 
have been more generous than his brother king? 
Would he have added the percentage in cash to the 
payment in honors and heritable titles? That question 
cannot be solved. The influence of the good queen 
prevailed, the king relented and signified his assent to 
the demands which he had thus far rejected. What 
influenced him to this change of spirit we may only 


154 Christopher Columbus 


conjecture. Perhaps it was a natural inclination to 
please his gentle wife; perhaps the fear that in striving 
to save ten per cent. he might lose ninety; perhaps 
he knew (and he remembered in after days) that 
agreements between king and subject are always open 
to royal revision and may be read in the right spirit, 
that is, as the royal pleasure may suggest. Like the 
lion in the fable, the share of the monarch is what he 
chooses to claim: ‘I take this,’’ says the lion, “‘ qua 
nominor Leo’’ (because my name is Lion)—an un- 
answerable argument from time immemorial. 

Even at this stage of the proceedings the current 
did not flow smoothly. The money, although prom- 
ised, shrank timidly from the risks which it was to run. 
Isabella had threatened to pawn her jewels, but this 
sacrifice was not exacted from her. The brothers 
Pinzon had become interested through Juan Perez in 
the proposed trip to an unknown world, and, thanks 
to them, the paltry sum was found which made the 
voyage practicable. By virtue of a slight modifica- 
tion in the agreement, Columbus was to furnish one 
eighth of the funds, but this he was able to do through 
his new friends. The contract, when finally reduced 
to writing, was executed on the 17th April, 1492; it 
was really the contract of Isabella of Castile, though 
signed by both monarchs; her subjects alone were per- 
mitted to settle in the new country so long as she lived. 

Columbus was not compelled to wait until success 
had placed the seal on his work to receive some of his 
reward. His name was changed from Colombo to 
Colon; he was graciously permitted to use the prefix 
Don, and his son was allowed to serve as a page to the 
Queen, a privilege which gave him access to the 
society of young people whose blood was blue. Thus, 


Christopher Columbus 155 


to some extent, at least, was he paid in advance. 
Ferdinand was a munificent king in the distribution 
of all those rewards the giving of which in no wise 
diminished the supply at his command. 

When Columbus went back to the small monastery 
and to the faithful friend who loved him still, the good 
prior rejoiced as though the victory were his and he 
were to receive large profits and brilliant titles. He 
lent a willing hand to the preparations for the great 
voyage; he helped to smooth over the countless im- 
pediments that still grew, like rank weeds, in the 
discoverer’s path. Three poor caravels had been 
found, the Santa Maria, the Niwa, and the Pinta; 
they had been made, thanks to the Pinzon advances, 
fairly seaworthy, but when the time came to man 
them, the old terror and superstition threatened de- 
struction to everything. Men would not embark on 
the ill-fated ships, rigged with curses dark as those 
that brought young Lycidas to grief. Sailors were 
plenty enough and daring enough, but they all wanted 
to return from any voyage on which they started, and 
how were they ever to get back to their own world 
after they had dropped into infinite ether, or sailed 
rapidly down the liquid hill? This difficulty, too, 
was vanquished. The scum of the seafaring popula- 
tion of the country was forced into the ships, and with 
a motley crew of bankrupts fleeing from their creditors, 
of criminals fleeing from justice, and of adventurers 
eager to feast their eyes upon and to fill their hands 
with the promised gold, the three ships sailed. 

They left Palos on Friday, the third day of August, 
1492, the good prior watching from the shore to the 
last, and praying for the friend he had served so well. 
Then commenced the weary journey, with its dangers 


156 Christopher Columbus 


and its doubts,—a sullen crew, animated by sordid 
motives, and ever ready to visit disappointment on 
its master, mutiny in a chronic state, and a strong, 
brave chief as well fitted to cope with the rebellion of 
men as he was able to meet the hostile fury of the 
waves. Of him, indeed, it might be said that his 
heart was cased in oak and triple brass, as the poet 
describes the fearless man who first entrusted his life, 
in a frail bark, to the cruel sea. From the first day to 
the last he was undaunted. His assurance of ultimate 
success was such that the belief grows upon us, when 
we contemplate it, that he knew that the land lay be- 
fore him, and approximately calculated the distance 
that he would have to sail. That he was wrong, in 
one respect, no one doubts,—he expected to find the 
continent of Asia, and found America blocking his 
way. But his confidence can only be explained on the 
theory that he had mastered the facts and was serene 
in consequence of the assurance they gave. As to his 
discontented and mutinous followers, he dealt with 
them as men of his stamp alone can deal. He awed 
them by his majestic bearing; he encouraged them by 
his unfailing confidence; he drew upon his vivid 
imagination to depict in glowing words the incalcu- 
lable wealth of the new countries they were about to 
reach. He used the only argument potential with 
them. They wanted gold, gold in abundance, without 
stint, without labor, without hindrance; he promised 
that they should have it to their hearts’ desire. With 
these promises and some deception as to the course 
that they were daily running, he succeeded in keeping 
them from open violence, until they entered upon the 
pleasant waters of the south and met unmistakable 
evidences that they were nearing land. Carved woods, 


Christopher Columbus 157 


branches with fresh flowers, the limb of a tree, which 
bore upon its fragile structure a bird’s nest, with the 
mother bird guarding her young covey,—these and 
other signs left no doubt in reasonable minds that 
the land was at hand. The balmy sweetness of the air 
was like their own Andalusian springtime; they only 
lacked the nightingale, said Columbus. But a new 
panic seized upon the men as confidence was beginning 
to overcome unreasoning fear. The wind died out, 
and days passed with nothing to relieve the anxious 
monotony that suggested dangerinanewform. What 
if this were a region of endless calm, and they were 
fated to die one by one in their motionless ships, the 
victim of one man’s folly and reckless ambition? He, 
at least, was a scapegoat, and might be offered up 
as a sacrifice or be punished for his crime. But he 
waited and compelled their patience until the sluggish 
winds once more filled their sails, and once more the 
men forgot to compass their leader’s death, in the 
hope that they would reach land and fortune together. 

Who first sighted that land is yet a question. Co- 
lumbus, whether he felt himself unable farther to resist 
the threats and importunities of his crew, or because 
he had calculated to his own satisfaction that he was 
about to reach his goal, solemnly promised that he 
would turn back and sail homeward if land were not 
seen within three days. The mutineers consented to 
this delay, and their murmurs were quieted for awhile. 
On the second day the signs were so favorable that the 
seditious sailors fell upon their knees; they besought 
their leader for pardon, and sang hymns of praise to 
the kindness of the Creator who had brought them so 
near the end of their labors and dangers. A reward 
had been promised to the man who would first sight 


158 Christopher Columbus 


the land. As Columbus, sleepless and vigilant, was 
pacing the deck of the Santa Marta, he saw, or thought 
he saw, a light; but previous disappointments had 
made him wary. He called the attention of two of 
his fellow-watchers to the light that rose and fell; one 
of them saw it, or thought he saw it, but, fearing a new 
disappointment, they all remained silent. In the 
early morning, however, the Pinta’s cannon announced, 
and truly, that land was in view; this was the con- 
certed signal by which the joyful news might be loudly 
proclaimed to all. 

And now we have the culminating point of the 
great explorer’s life. His triumph was without alloy. 
It was even greater in appearance than in fact. He 
believed that he had at last found the land of prom- 
ise and of untold wealth, and as he left his ship and 
stepped ashore, clad in purple and bearing the insignia 
of his newly won honors, he might well exult in the 
fulfilment of his prophecies and the realization of his 
dreams. He was now entitled, under his contract, to 
the rewards which he coveted; he might now bring 
the simple and harmless men, women, and children 
who met him on the shore within the fold of the 
Church. No misgivings entered his mind. The island 
on which he first set his foot must be at the very door 
of the Indies, and with becoming reverence he bap- 
tized it in the Saviour’s name, San Salvador. 

Then commenced a series of adventures in dream- 
land—by daylight; at least such it must have seemed 
to the travellers. The loveliness of the skies, the 
gentleness of the inhabitants, the songs of the birds, 
the pure and balmy atmosphere,—above all, the con- 
fident hope of forthcoming gold,—were, indeed, such 
as to fill their hearts with joy, and almost to justify 


Christopher Columbus 159 


the belief that the earthly paradise had been found. 
If that hope could only be realized, their happiness 
would be complete; for we cannot close our eyes to 
the fact that whatever Columbus personally may have 
felt, the gentle heathen and his salvation were the ac- 
cessory and not the principal subjects of the general 
solicitude. The feverish anxiety to secure the yellow 
metal of which the trinkets were made that adorned 
the persons of the inhabitants, the numerous inquiries 
as to the source whence that metal had been procured, 
the interest exhibited for its acquisition, could not but 
impress the astonished native, who believed that gold 
was the god of his new visitors. Columbus, himself, 
allowed his great and noble purposes to be deferred to 
satisfying the greed of his crew, and with earnest ap- 
peals to the Almighty, he prayed for instructions that 
might lead him to fortune. “Our Lord, in whose 
hands are all things, be my help!” he cries, ‘Our 
Lord in His mercy direct me where I may find the 
gold mine.’’ They wandered from island to island— 
kidnapping a dozen or two of the natives who had 
never been taught resistance, greed, or cruelty—in 
quest of the undiscovered treasures. Every point that 
he touched was, according to Columbus’ narrative, 
more beautiful than all the rest; in fact, he indulges in 
such wild and extravagant expressions of delight, that 
a suspicion is raised (as Prescott has it) that a tem- 
porary alienation of mind is shown in the letters which 
he wrote from Jamaica to the sovereigns. “Sober 
narrative and sound reasoning were strangely blended 
with crazy dreams and doleful lamentations. Vagaries 
like these,” adds Prescott, ‘‘which came occasionally 
like clouds over his soul to shut out the light of rea- 
son, cannot fail to fill the mind of the reader, as they 


160 Christopher Columbus 


doubtless did those of the sovereigns, with mingled 
sentiments of wonder and compassion.”’ Our lamented 
friend Dr. Gilmary Shea has pointed out, in his work 
on Columbus, that “he seems to have succeeded in at- 
taching to himself but few men who adhered loyally 
to his cause. Those under him were constantly re- 
bellious and mutinous; those over him found him im- 
practicable. To array all these as enemies, inspired by 
a Satanic hostility to a great servant of God, is to ask 
too much of our belief.” 

It would extend this paper far beyond any reason- 
able limit if I sought to enter into anything more than 
a rapid and cursory narrative of the four voyages that 
Columbus made to America and thence back to Spain. 

The first was the only one which gave him unmixed 
glory and happiness. He then touched the pinnacle 
of his fame, and the descent after that to ruin and 
disgrace was as distressing as it was rapid. Up to the 
moment of his death he believed that when he set his 
foot on the soil of Cuba he stood on the continent of 
Asia. With that delusion firm and fixed, he died. 
At least we may assume that it was really entertained 
by him, although the dramatic conditions that accom- 
panied his first declaration of the fact might shake our 
belief in his good faith. One of his first acts on taking 
possession of the island was to impose an oath upon 
his men, making them declare that they had reached 
the coast of Asia. Such an exaction seems hardly 
consistent with entire sanity. 

Perhaps nothing can give a better idea of the effect 
produced by these strange sights upon so strong an 
intellect as that of Columbus than the fact that he 
was quite assured that he had seen mermaids in these 
southern waters. The prosaic explanation given is 


Christopher Columbus 161 


that they were probably sea-calves, and that their 
heads, when slightly lifted above the water, bore a 
general resemblance to the human face. The truth is 
that everything around him was new and mysterious; 
there was no difficulty in believing that such romantic 
persons lived in the sea. 

Columbus received a right royal reception on his 
return. Both sovereigns rose to receive him standing ; 
and when he stooped to kiss their hands, they gently 
and graciously lifted him and bade him sit. Then he 
told his story, and from time to time produced the 
evidences of his veracity. He showed the Indians 
that he had captured, the birds, the skins, the bar- 
baric ornaments, and the samples of gold which he had 
brought with him, and when the Te Deum had been 
chanted, he was treated as a royal guest and assigned 
lodgings under the royal roof. This period of a few 
weeks was really the only time of unalloyed happiness 
that Columbus ever enjoyed. He was not averse to 
public scenes nor disposed to shrink from the plaudits 
of an admiring multitude; when he passed among the 
excited throngs his face beamed with content. There 
was no trouble then to find volunteers for another 
transatlantic voyage; the specimens of hard and 
yellow gold were more eloquent than any discourse 
that had ever been spoken by Columbus. The curb 
became more necessary than the spur when the new 
expedition was fitted out. Capital had lost its shrink- 
ing and sensitive modesty, in view of assured success. 
All the ships in the ports of Andalusia were placed at 
Columbus’s disposal and he was authorized to compel 
service from those whom he chose to carry with him 
on his expedition. Military stores were abundantly 
provided; able and intelligent supervisors aided 


162 Christopher Columbus 


him; among these we find the name of Americus 
Vespucius. 

The conversion of the heathen to Christianity was 
formally declared to be one of the most important 
objects of the enterprise. The King and Queen showed 
their good faith by designating twelve learned priests 
to accompany the expedition; one of them was the 
apostolic vicar. Isabella’s kind heart had been 
moved by the accounts of the gentleness and simplicity 
of the natives to consider them with tender com- 
passion, and to her credit be it said that she strictly 
enjoined that they should be treated with the utmost 
kindness. Columbus was ordered to inflict signal 
punishment on all Spaniards who should be guilty of 
outrage and injustice towards them. 

About fifteen hundred men started upon the second 
expedition. They carried with them goats, sheep, 
cows, and domestic fowls. Once more the fleet entered 
the beautiful regions of the south. Porto Rico and 
other islands were visited and taken possession of in the 
name of Spain. The adventurers met the Caribs, who 
were said by Columbus to be very fierce and given to 
eating human flesh. Whether it be true that these 
barbarous people were actually addicted to such re- 
volting practices may well be doubted. Even Mr. 
Irving, one of the most earnest defenders of Colum- 
bus’ fame, ventures to question the reliability of these 
statements. There is but little to support and much 
to contradict the charge. Hayti was reached and 
visited for the second time. The natives had heard 
of Columbus on his first voyage and still entertained 
a friendly disposition toward him. They came on 
board the ship without hesitation or fear. The Ad- 
miral had left behind him a colony of men on the 


Christopher Columbus 163 


former trip, and the fortress that he had built was 
found and visited; nothing remained except vestiges 
of ruin to show where it had stood. It had been 
sacked, burned, and utterly destroyed. The story 
was soon told, and there is no reason to doubt its 
substantial truth. While Columbus was present he 
was able to exercise some restraint upon the fierce 
passions of his men, but no sooner had his ship dis- 
appeared in the distance than the new colonists 
abandoned themselves to all their brutal instincts. 
They wandered uncontrolled among the Indians; they 
robbed them of their gold, of their homes, of every- 
thing that was sacred in their domestic relations. If 
the Indians did suppose, as has been said, that the 
white men had come down from heaven to visit them, 
that illusion was soon dispelled in the wild debauch 
of unmerciful brutality. Even after these four cen- 
turies, it is pleasant to draw a veil upon that scene 
and many others that accompanied the first settle- 
ment of America. 

We may turn with comfort from this picture and 
contemplate the good and holy men, members of the 
same old faith, who were among the first to explore 
the wilderness of America for the heathen’s sake; the 
noble martyrs who with the staff and the cross, with 
no hope of reward except the saving of souls, hungry, 
worn, persecuted, and tortured, walked, alone and 
unguarded, the wilderness of the lake country, pushed 
their way to the Father of Rivers, preached the gospel 
to the savage whom they startled by their audacity, 
shed no blood but their own, permitted no torture but 
of their own bodies, pitied all men except themselves, 
and thought every danger and torment a gain if it 
promised honor and glory to their God. If we feel at 


164 Christopher Columbus 


any time disposed unduly to honor Columbus the 
Catholic let us evoke the picture of the Jesuit pioneers 
of the country that he discovered. The testimony 
of these martyrs will silence History if she exalts him 
beyond his merits. 

The third voyage was another step on the downward 
plane. The machinations of unrelenting enemies pro- 
duced their bitter fruit. But for the faithful brothers 
Bartholomew and Diego, it is not likely that Columbus 
would have survived to see his home once more. The 
era of bloodshed had been opened; so-called battles 
had been fought, and the natives, by thousands upon 
thousands, were destroyed. Resistance to the steel- 
clad horsemen was out of the question. We need not 
wonder that the stranger, with two hundred infantry 
and twenty horsemen, flanked by twenty bloodhounds 
as fierce as tigers, was able to meet and conquer one 
hundred thousand men, nor that the victory of the 
Spaniards was complete, and that the natives were 
crushed beyond hope of redemption! 

It is pleasing, again, to turn to Isabella, who con- 
tinued to regard these gentle and unoffending natives 
as intrusted by God to her peculiar protection. Her 
disinterested love was not turned into avarice even 
by a cargo of five hundred slaves that was sent her. 
An order was issued for their sale, but she counter- 
manded it, and directed that the captives should be 
returned to their own land. Again she sent a special 
order that the natives should be treated with the 
utmost kindness. But great wrongs had been perpe- 
trated before this ineffectual evidence of a loving 
heart reached its destination. 

Meanwhile public sentiment was changing as to the 
value of the discovery. The ship-loads of gold had not 


Christopher Columbus 165 


come in; a few cargoes of slaves were but a small 
realization of the brilliant expectations that had 
charmed the imagination of sovereigns and subjects. 
Men had come back from these transatlantic voyages 
worn, disabled, broken in health and spirit. Extreme 
measures were again necessary to secure crews. Con- 
victed malefactors were offered pardon if they would 
embark for the colonies. The enthusiasm had died 
out; discouragement and distress had set in; the star 
of Columbus had grown pale, it was soon to emit its 
last fitful gleam of intermittent light. 

It was on this third voyage that Columbus, for the 
first time, had a glimpse of the continent which was to 
be called America. But Sebastian Cabot the year 
before had already discovered the continent; so had 
Americus Vespucius. The trip was one of great 
suffering and disappointment. To the mental distress 
which well-nigh overwhelmed him were added the 
tortures of gout and failing sight; still he did not 
surrender to changing fortune, and with unshaken 
fortitude he revisited the scenes of his first discoveries 
and touched from time to time at new islands. 

While Columbus was absent on his unpromising, ill- 
omened voyage the clamors against him swelled into a 
chorus loud enough to reach the Court. Complaints 
were many, some of them, perhaps, not without foun- 
dation. One of his chief lieutenants rebelled and en- 
tered into open conflict with him. In an unguarded 
moment Columbus requested that an umpire might be 
sent out to decide the question. This was the signal 
for his downfall. Ferdinand sent out an umpire in the 
person of Bobadilla, and the result was that Colum- 
bus returned home in chains. 

The Queen greeted her old friend with tears, while 


166 Christopher Columbus 


he, moved by her compassion and sympathy, fell upon 
his knees, weeping convulsively. He was old and 
worn and broken physically: nothing but his lofty 
' spirit had stood the cruel tests to which he had been 
subjected. The accusations made by Bobadilla were 
disregarded. Favor and affection were once more 
lavished upon Columbus, and abundant promises 
made, which were never kept. If the account of Las 
Casas be true of the condition of the natives under 
Bobadilla, the estate of those unfortunate people was 
made worse by the change of masters. 

And now preparations were made for a fourth voy- 
age. Other courts had been gained by the contagion 
and inoculated with the ambition of great adventures. 
De Gama had doubled the Cape of Good Hope, and 
was enriching Portugal with the products of the East. 
Columbus was to start in quest of a strait, supposed to 
be somewhere near the Isthmus of Darien and connect- 
ing the two great oceans. After many delays, the 
fleet of four vessels was ready to sail. The largest of 
the caravels was but seventy tons’ burden, and his 
whole company amounted to but one hundred and 
fifty men. He turned his back for the last time 
upon Spain, an old man, exhausted with anxiety and 
trouble, and racked with physical sickness. Time 
and adversity had subdued all but the unconquerable 
will, and once more his faithful brother Bartholomew 
accompanied him to guard, protect, and defend him. 

Columbus now visited Honduras and Costa Rica. 
He explored bays on the Isthmus of Panama, and 
found evidence that gold in large quantities was to be 
had in these regions, but his shattered health paralyzed 
all physical exertion, while his leaking ships warned 
him that he should hasten to return. He attempted 


Christopher Columbus 167 


to establish a colony on the river Belden, where he 
intended to leave his brother in command while he 
returned to Spain for supplies. 

The fourth voyage ended in almost total disaster. 
It was full of disappointment and suffering. Cyclones, 
insurrections, hunger, and the fear of starvation 
caused Columbus the deepest anxiety. His ships 
could not be repaired, nor could he build new ones. 
The situation at Jamaica became so critical that 
Columbus was constrained to send one of his followers 
in a canoe to Hispaniola, a distance of one hundred 
and twenty miles, to procure relief, for destruction 
waited upon inaction. They dared not start upon 
their return with their decayed and broken ships; the 
dreary weeks ran into months, every day bringing its 
new weight of woe to the desperate situation. Mutiny 
was added to the other elements of dissolution. 
Finally, the Indians could no longer be forced to bring 
food from a distance and continued to resist until 
Columbus, working upon their superstitious fears, 
called them together and predicted a total eclipse of 
the moon, a sign, he declared, of the Divine wrath, 
which would soon be directed against the disobedient 
natives if they did not at once procure supplies. The 
eclipse came, and the terrified Indians, in trembling 
submission, helped their persecutors to live. 

Finally, after new mutinies and a pitched battle be- 
tween contending factions of angry Spaniards, Colum- 
bus left the New World to return to Spain. He reached 
his country a weak and tottering old man. His faith- 
ful friend the Queen was herself upon her death-bed; 
no greeting from her, as formerly, warmed the drooping 
spirits of the Admiral. He found his financial affairs 
in the utmost confusion. His great expectations of 


168 Christopher Columbus 


brilliant rewards had never borne fruit. Poor as he 
was when he left Spain in August, 1492, he was actually 
poorer when he returned home to die. The royal 
contract, which he had been at such pains to secure, 
gave him no rights that he could enforce. Ferdinand’s 
conscience was no longer quickened, his generosity no 
longer stimulated, by the presence and kindness of his 
queen. The pressure upon his treasury was great, and 
the relief which he had expected from the promises of 
Columbus had never come. Gold from America he 
had seen, but only in such quantities as to sharpen 
desire, not to satisfy greed. He could not read the 
future, and he did not, therefore, know that royal 
revenues were to flow into the coffers of his successors, 
not so much from the gold mines that time would un- 
cover, as from the marvellous tobacco plant that 
Columbus had found in Cuba. He may have felt that 
the exactions which he had been coerced to accept 
when the agreement was made had been imposed upon 
him by a sort of duress. At all events, he turned a 
deaf ear to the supplications of his one-time associate, 
and postponed the manifestation of his gratitude until 
Columbus was beyond the reach either of his favor or 
his anger. The discoverer was not suffering alone 
from cruel disease, but for lack of the actual neces- 
saries of life. ‘I live by borrowing,” he said; “little 
have I profited by twenty years’ service, with such 
toils and perils, since at present I do not own a roof in 
Spain, and for the most time I have not the where- 
withal to pay my bills.” This came from the man who 
had actually sat in the presence of royalty, and who 
had been decorated with the titles of Don, of Admiral, 
and of Viceroy! These poor honors were all he had 
to leave his children. He earnestly besought the King 


Christopher Columbus 169 


to appoint his son Diego to the viceroyalty, of which 
he had been so cruelly deprived. ‘‘This,’’ he wrote, 
“ig a matter which concerns my honor. Give or 
withhold, as may be most for your interest, and I 
shall be content. I believe the anxiety created by the 
delay of this affair is the principal cause of my sick- 
ness.”” But in spite of this care for earthly honors, 
distinction, and titles for himself and those that were 
to follow him, his thoughts were turned to greater 
things. Be his weaknesses what they may, an ardent 
love for the Church had been a conspicuous feature in 
his life, in his thoughts, and in his acts. The sense of 
responsibility for all that he had done was before him 
to the end, lightened and brightened by a confident 
hope, frequently expressed, that his shortcomings 
would be mercifully condoned. His mind turned with 
pathetic affection to the small town of Concepcion, in 
Hispaniola, which he himself had founded, and there, 
on the new land, which could never be mentioned ex- 
cept in connection with his own fame, he desired that 
a chapel should be raised where divine service should 
be celebrated for his benefit and that of all whom he 
loved. 

Death did not take him unawares or unprovided; 
he saw its approach without dismay. Indeed, in his 
straitened and distressed condition, Death was the 
only friend upon whose face he could look with any- 
thing like hope. Life had and could have nothing in 
store for him but sickness and heavier sorrow. His 
fortunes were broken, his glory on the wane, his family 
poor, his body racked by pain. What wonder that 
he should have longed for the hour of departure? 
When the message came, he welcomed it with joy. 
His last words were uttered in Latin: “‘/u manus tuas, 


170 Christopher Columbus 


Domine, commendo spiritum meum.” ‘‘Into thy hands, 
O Lord, I commend my spirit.” 

Then, being dead and no longer an obstruction in the 
royal path, or an unpleasant reminder to the royal 
conscience, royalty once more smiled upon him. A 
gorgeous funeral atoned, so far as it could, for neglect 
and injustice. Great honors followed his corpse to 
the church of Santa Maria de la Antigua. His enemies 
were silenced and comforted by the reflection that he 
could no longer interfere with their fortunes. The 
King was relieved and promptly placed a glorious seal 
upon the greatest episode of his reign. He was able 
to balance, by posthumous and inexpensive tributes, 
the open account pending between himself and his late 
partner. Isabella gone and Columbus in his grave, 
the only one of the firm then left was Ferdinand. He 
could wind up the business to suit himself. 

But the remains of Columbus were not permitted to 
rest in Spain. Once more, but this time in unaccus- 
tomed peace, he crossed the Atlantic to find a resting- 
place. It is said that his body still sleeps in the 
Cathedral of Havana, on that island which he had 
solemnly declared to be part of the continent of Asia. 
The claim of Havana to this honor is disputed, but 
the evidence seems to be conclusive, and we may state 
with something like certainty that the great discoverer 
is now resting in the cathedral of that city. 

Columbus, like all conspicuous actors in the history 
of the world, has had his critics and his panegyrists. 
Some have gone to the verge of extreme laudation and 
others have condemned him with unsparing severity. 
History will side with neither of these extremists. 
We may fairly judge him by what he did and what he 
failed to do. There is no recorded instance of more 


Christopher Columbus 171 


admirable tenacity of purpose nor of more unflinching 
devotion to one single idea; none of courage more 
steadfast in the face of perils of every kind. If 
we should measure him by the standard of to-day, 
nothing that his modern accusers have said in con- 
demnation of many acts alleged against him would be 
too severe, but the standard of to-day may not with 
justice be applied to the man who lived four centuries 
ago. 

The accusation against Columbus is the traffic in 
slaves, but this had been and continued to be the 
practice of every nation for centuries after him, and 
of our own country almost to our own generation. It 
may only be said, and this means much, that he was 
better than the men who were with him. We may 
not compare him to the venerable and humane Las 
Casas, but his name, when placed beside those of 
others who shared or marred his fortunes, will shine 
with a lustre rendered brilliant by comparison. It is 
much to say of any man that he was better than his 
day. This can be asserted of Columbus. Personally, 
he appears to have been, in the ordinary relations of 
life, humane and just; his pursuit of gold was certainly, 
in a great degree, the result of his anxiety to satisfy the 
King. Gold he had promised; gold he was bound to 
furnish, and it was the failure to perform this promise 
that poisoned his life, cost him his popularity, and 
hastened his death. 

Although the real merit to be attached to his dis- 
covery is subject to question, because he started to 
reach Asia and stumbled upon America, yet he is 
entitled to our gratitude for the splendid service which 
he rendered, and to be placed on the roll of humanity’s 
great servants. The obstacles in his way would have 


172 Christopher Columbus 


daunted any man not of heroic mould. If he showed 
an indifference to human life in dealing with the 
natives, we may not forget that life was cheap in the 
fifteenth century. Tenderness and hesitancy to shed 
a brother’s blood were not in the morals and practices 
of the times, indeed they are not now when nations 
undertake for their own purposes to impress their 
civilization on an inferior people. That one of the 
motives which impelled and sustained him throughout 
was the desire to spread the Gospel through new lands 
can scarcely be disputed. Whether, after weighing 
these motives in the scales of infallible and eternal 
justice, it will be found that this was in truth the 
mainspring of his action and the pure fountain of his 
unflinching purpose, or merely incident to a personal 
end, none can decide. I prefer to accept and to close 
with the wise and prudent words of the Sovereign 
Pontiff: 


The eminently distinctive point in Columbus is that in 
crossing the immense expanses of the ocean, he followed 
an object more grand and more elevated than did the 
others. Not that he failed to be influenced by the very 
legitimate ambition to earn and to merit the approval of 
society, not that he despised the attributes of glory, that 
concomitant of success, whose spurs often cut more deeply 
those greatest among men, nor did he disdain entirely the 
pursuit of personal advantages, but above all those human 
considerations soared the leading motive in the religion of 
his forefathers. 

Where, indeed, would he have supplied himself with the 
necessary constancy and strength of soul to endure what 
he had to suffer and submit to, had he not drawn upon a 
motive superior to human interests? Contradicted by the 
learned; repulsed by princes; tossed by the tempest on 
the furious ocean; more than once deprived of the use of 


Christopher Columbus 173 


his eyes by the strain of the long and weary watches; to 
these must be added the combats sustained against the 
barbarians; the infidelities of his friends and his com- 
panions; the villainous plots and conspiracies; the perfidy 
of the envious; the calumnies of the traducers, and the 
traps set against his innocence—this man must inevitably 
have succumbed under the weight of such great trials and 
such numerous assaults, had he not been upheld by the 
conscience of his admirable enterprise, in the success of 
which he foresaw the greater glory of the Christian name 
and the salvation of an endless multitude. 





? 


ZS So gid 
fs , iz as 
é oO) oA » VEER aS NAN 
QW i 28) ee Ail Aok ANS ‘i Si 
Ose DA aS COV 
26 JAN ms | y <f 
7 S 525 ey) D 





vI 


THE KOSSUTH MEMORIAL CELEBRATION ! 


\ N ) HO was this man whose memory we are met 
to: honorc | Wihati claim) has) ihe toi ous 
reverence? What spell has been wrought 

about his name that we should pause in our busy lives, 
and, leaving business, pleasure, or welcome rest, should 
in solemn reminiscence treat him as one of our kin? 
Yet, of our kin he was not. The strong ligament of a 
common ancestry did not bind us to him nor to his 
people. He had not, nor had they, earned gratitude 
for valuable service to our nation. Born and bred in 
a remote and to us untravelled quarter of the world, 
passionately devoted during all of his active life to 
the gallant race from which he sprang, an alien in 
every sense to us and our fathers, what strange history 
has so deeply knit his name to our hearts that we 
may mourn for him without insincerity and praise 
him without affectation? While the funeral bells that 
tolled a few days ago at Turin echoed throughout the 
world, the older men among us remembered, and the 
younger men were taught, that there were giants in 
those days, and that one of them was dead. It is this 
claim of his to our reverence that I propose briefly to 
discuss to-night. It behooves us to single out for 

1 Address delivered at Cooper Union, April 4, 1894. 
174 


Kossuth Memorial Celebration 175 


special demonstrations of posthumous respect none 
but those who have served the human race. “Is the 
world better because they have lived?” is a ques- 
tion that must and shall be put, and only when the 
prompt answer is, that they have so lived as to make 
men better or wiser or happier for their example, 
may we justly accord them these funeralhonors. The 
conventional pomp that accompanies men great in 
power or rank to the grave is of a different order from 
this. The pathetic but rebellious impotence of wealth 
yields a grudging assent to the inexorable demands 
of death and seeks to cheat itself into the belief that 
it is not all powerless. To this end it resorts to vain 
and splendid fictions, but the victory of the destroyer 
is none the less complete. None of the stately trees 
that Dives loved so well to call his own will follow him 
to the grave—except the gloomy cypress. 

But there are men whom the world loves to keep 
and fain would never lose. They stand out and apart 
from the dark crowd that rushes headlong and heedless 
on the road that all men must tread once. Mercury 
with his pitiless wand drives them on to the end of 
the journey, sparing none, though so many clamor 
for special mercy, and compelling all to bow to the 
inevitable. 

Yet some were not born wholly to die. Non omnis 
moriar may that man truly say who has written his 
name upon the grateful memories of men. In return 
for service rendered he may expect, what Kossuth 
might justly hope for, flowers from loving hands, even 
in far-away places; kind words, even in a language not 
his own; gentle thoughts from the lovers of truth, 
courage, and unselfishness. 

To speak at any length of Kossuth’s public life and 


176 Kossuth Memorial Celebration 


service before this audience would be presumptuous. 
That life was short but singularly full. His objects 
were all noble, his aspirations always high, his thoughts 
and speech expressive of a nature as heroic as it was 
generous. He belonged to a noble race. His blood 
was prepared by generations of loyal forefathers to 
do battle for his country and his country’s freedom, 
irrespective of personal advantage and of personal 
peril. An eloquent tongue and a fearless pen made 
him a formidable champion for the cause he loved. 
And, as though Fortune had chosen him to be one 
of her favored children, he reached his full maturity 
when the moment seemed most propitious for shak- 
ing off the burden of wrongs made tolerable only by 
prescription. 

The now dying century was in its early promise 
when Louis Kossuth was born. Napoleon was yet 
only Bonaparte, but his star was rapidly rising to its 
zenith. Austerlitz was soon to startle the world, and 
at the roar of its victorious guns Pitt was to fall as 
though struck in the breast bya French bullet. The 
new States of America were trying with hesitating 
steps to fit themselves for their mission as the pioneers 
of freedom. The father of modern democracy was at 
the helm, hard pushed to steer the ship of state among 
the breakers. Great Britain was sullen and con- 
temptuous, ill-reconciled to the loss of the colonies 
that she had so recklessly driven from their allegiance. 
Andrew Jackson was sharpening his sword for battle 
and unconsciously preparing for that day at New 
Orleans when the parent state was taught that the 
rebels had grown into free and independent men, and 
had lost none of their vigor because they had changed 
their flag. The power of the press was in its infancy, 


Kossuth Memorial Celebration 177 


but promised to rule the world. War was the normal 
condition of Europe. Austerlitz was followed by a 
dazzling succession of triumphs until the final crash 
came at Waterloo. But the French Revolution had 
been marching on, clad in various dress, from the 
plain garb of the citizen to the imperial purple of 
that revolution’s greatest parvenu. Congresses settled 
matters to suit themselves, but the people had become 
conscious of their power, and the Hungarian boy 
learned with the alphabet that the Almighty had 
not, by irrevocable transfer, committed His authority 
to frail men who wore a crown and who boasted a 
pedigree. From the first, the young Magyar was an 
ardent patriot; his country absorbed and exhausted 
his faculty of loving. His heart was high and his 
speech was bold. He had a message to deliver, and 
deliver it he must. But Free Speech and Imperial 
Authority make an ill-assorted couple. Free Speech 
may reason, but Authority may strike. Right may 
rejoice in Logic, but Might frowns and throttles Logic 
and Right together and provides them with a jail, 
until Right and Logic grow so strong that Might is 
constrained to gentle manners and courteous forms. 
The presence of cannon is a marvellous promoter of 
politeness, some one has truly said. But when Kos- 
suth, barely out of adolescence, spoke his lesson, the 
cannon were all on one side, and then politeness be- 
came surplusage. He was called by the ugly name 
of traitor, because he did not accept what he was bid- 
den to with cheerfulness and uncomplaining alacrity. 
The family of traitors is large, and we realize to-day 
that, if some of the traitors who have been treated 
with thumbscrews and made to dwell in dungeons and 
to perish by the rope or the axe were to reappear on 


178 Kossuth Memorial Celebration 


earth, we would kneel before them and kiss their 
hands and bless them as martyrs. So Kossuth was 
dubbed a traitor because he preached a series of ser- 
mons with liberty as his text, and he tasted in this, 
his early youth, the honor and the horrors of a prison 
cell. But the world had moved since two great revo- 
lutions had taught kings that their consecrated heads 
could fall under the axe or the knife with the same 
facility as though they had belonged to the common- 
est plebeian. 

The imprisonment of this one man started the press, 
and the press stimulated public opinion, and then the 
danger came to the jailers. 

Such a fuss about this Magyar lawyer and scribbler 
was, of course, absurd and almost indecorous; but if 
people were unreasonable they must be cajoled and 
petted into good-humor. And just then a French- 
man with a small body and a stout heart was Minister 
of Foreign Affairs in France, and knowing the temper 
of his own people he gave notice that, unless this 
young traitor were released, France would start a con- 
flagration that would spread over Europe and possibly 
burn up, in its indiscriminating fury, many things that 
the world could do without, but which monarchy 
would sadly miss. So the young traitor was not 
maimed, nor branded, nor otherwise treated as traitors 
deserve, and he once more saw the sunshine and 
breathed the free air and went about his way. That 
is, he was a deeper-dyed traitor than ever, and wrote 
for freedom and spoke for freedom as few men had 
ever spoken or written before. And thus, during the 
years to come, up to the eventful period of ’47, he 
sowed the seed and watched its growth, and sought to 
pluck out the cockle that grew with the seed. He was 


Kossuth Memorial Celebration 179 


no wild and furious despiser of law. He was a lawyer 
bred,—a conservative in the true and best sense,— 
relying for the conservation of society upon those prin- 
ciples which unite and do not divide the men of a com- 
munity. All that he wanted was the sum of freedom 
which permitted the free expansion of his fellow-coun- 
trymen’s faculties, and the right to develop after their 
own fashion, not against, but under and in compliance 
with wise laws. He belonged to that family of far- 
seeing men who, living perhaps ahead of their day, as 
such men do, saw that something durable must take 
the place of the ephemeral structures upon which so- 
ciety had theretofore rested. He knew that democracy 
was, with giant strides, superseding the rule of the 
few over the many, and that the future of the world 
lay in the development of sound, equal, and demo- 
cratic laws. 

In 1847, a few months before the great tornado 
swept over Europe, he was a recognized leader. He 
was elected a member for Pesth. His fame had spread 
and his name was known throughout the continent, 
and when at last he, and other patriots like himself, 
beheld the great movement started in France and 
spreading over Europe, they might almost have said in 
the enthusiasm of fruition, ‘‘Nunc dimittis, Domine,—”’ 
“Now dost thou, O Lord, dismiss thy servant,—’’ for 
the fruit was well-nigh in their hands, mature and 
beautiful, and the triumph of their cause seemed cer- 
tain. But Providence did not so will it. The fall 
was greater even than the triumph. The Old World 
was not ready for the final leap, nor prepared to discard 
old governmental superstitions, that it might take its 
own affairs into its own hands. Events followed each 
other in rapid and startling succession. The tidal 


180 Kossuth Memorial Celebration 


wave of popular enthusiasm carried Kossuth to the 
highest positions. For one brief period he was the 
Governor of Hungary—an independent State! Then 
came reaction; then disappointment and bloody de- 
feat; then followed persecution, flight, and the bitter- 
ness of exile. 

I shall not dwell upon these scenes; but what a 
pathetic commentary upon the fate of a man whose 
aspirations were all for the benefit of mankind, that 
he should at last have found no refuge among his own 
people, none among the neighboring nations, but be 
left a suppliant for the hospitality of the Sultan of 
Turkey! And a dependent upon his mercy he re- 
mained—to the honor of that Sultan be it said, safe 
and protected against the demand of those who would 
have seized him to treat him as they chose. 

Whether Turkey would have delivered Kossuth to 
those who demanded him or not unless the United 
States had intervened, and by friendly remonstrance 
and entreaty impressed upon that Government the 
duty of protecting the fugitives from their persecutors, 
we may only conjecture and need not inquire. The 
time did come when our Government, stimulated and 
aroused by the demands of our people, sent a ship 
carrying at its mast-head the stars and stripes, and did 
itself the great honor of receiving as its guest the hero 
of the Hungarian revolution. There for the first time 
he felt safe and free. There he knew that neither 
threats nor blandishments could imperil his safety; 
that not a hair of his head would be touched so long as 
that flag assumed the duty of protecting him. 

But even when he reached our shores, and was re- 
ceived with acclamations that rang through the whole 
breadth and length of the land, his heart was sore and 


Kossuth Memorial Celebration 181 


sick. He made no pretence of being comforted even 
by the glorious reception that was freely given him. 
It touched but did not cure his heart, which ached in 
spite of processions and banquets and ringing shouts 
of welcome; it continued to yearn for the land that he 
had hoped to free, but which, alas! seemed farther 
from freedom than when he undertook her cause. 
Listen to the first words that he spoke when our city 
received ‘him. You will hear the note that rang 
through all his addresses. His bodily presence was 
in America, but the spirit and the high hopes were 
buried in his native land. 


Alas! [he cried, when he was received by our city au- 
thorities on his arrival] I have no home, and the freedom 
of my people is downtrodden. Young giant of free 
America, do not tell me that thy shores are an asylum to 
the oppressed and a home to the homeless exile. An asy- 
lum it is, but all the blessings of your glorious country, can 
they drown into oblivion the longings of the heart and the 
fond desires for our native land? My beloved native land! 
Thy very sufferings make thee but dearer to my heart; 
thy bleeding image dwells with me when I awake, as it 
rests with me in the short moments of my restless sleep. 
It has accompanied me over the waves. It will accom- 
pany me when I go back to fight over again the battle of 
thy freedom once more. I have no idea but thee; I have 
no feeling but for thee. 


Never in our history was such a generous reception 
accorded to a man of alien blood, unless we except the 
welcome that Lafayette received when he revisited 
America in 1824. Then, indeed, the popular heart 
was touched and the imagination of the people pic- 
tured many solemn scenes that were significant of 


182 Kossuth Memorial Celebration 


personal participation to men then living. Jefferson 
continued to raise tobacco and to dispense lavish 
hospitality at Monticello, while his old enemy John 
Adams, with unabated vigor, confided his resentments 
and prejudices to his diary. Lafayette could compare 
the growing city of 160,000 inhabitants with the small 
village that he had seen at the end of the last century. 
He could gaze at the banners that floated gaily to the 
breeze and find familiar beauty in every stripe, well- 
known grace in every fold, the memory of hopes now 
ripened in every star. The republic was no stranger 
to him, for he and men of his blood had done much to 
build it; he needed no guide over the battle-fields, for 
he had slept on them, fought on them, and with the 
traditional gaiety of his race he had laughed there at 
danger and played with death. Among the founders 
and citizens he stood as one of themselves—nay, was 
he not the first of all, since Washington had called 
him “Son,” and thus ennobled him as he had ennobled 
no other man? What royal parchment ever bestowed 
such a dignity as this? And if perchance in the years 
gone by he had forgotten something of the geography 
of the old colonies and of the new States, we may be- 
lieve that he still remembered the great days of York- 
town, when he shared with Washington the glory and 
immortal honor of dealing the heaviest and the final 
blow to his adopted country’s foe. 

But Kossuth was a stranger save as fame had carried 
his name over the seas from old Europe to new Amer- 
ica. His heart was full of gratitude, but not of joy. 
His hopes may not yet have died, but they clustered 
about and clung to the old land of his people; they 
had no dwelling-place among us. Webster with great 
beauty and pathos pictured the condition of these 


Kossuth Memorial Celebration 183 


patriots when he wrote to Mr. Marsh at Constantinople, 
and bade him in the name of our Government to inter- 
cede for the liberation of the Hungarian patriots. 


For their attempt at independence, they have most 
dearly paid, and now broken in fortune and in heart, with- 
out home or country, a band of exiles whose only future 
is a tearful remembrance of the past, whose only request 
is to spend their remaining days in obscure industry, they 
wait the permission of his Imperial Majesty to remove 
themselves, and all that may remain to them, across the 
ocean to the uncultivated regions of America, and leave 
forever a continent which to them has become more gloomy 
than the wilderness, more lone and dreary than the desert. 


But Kossuth was not content with barren hurrahs 
and splendid feasts. He undertook to storm the 
citadel of a nation’s heart, and he succeeded. He 
ventured to capture their understanding, to direct 
their will, to throw aside their traditional rules of con- 
duct; he deliberately sought to involve this nation 
into European quarrels. Earnestly and with almost 
irresistible eloquence he besought our Government to 
come forward as the champion of oppressed nation- 
alities, to relieve his struggling people by direct inter- 
ference, and to turn its back upon the wholesome 
rules of international neutrality which had thus far 
been observed. Strange to say, the witchery of his 
voice almost carried the day. Circe, with her accents 
of resistless melody, was not more potent to lure men 
to her will than this inspired stranger. He stifled the 
voice of reason; he threw a spell over men of calm 
judgment and led them captives in his triumphant 
train. We may now realize that the United States 
escaped one of the greatest perils in its history, but 


184 Kossuth Memorial Celebration 


we must recognize, too, the matchless power and sin- 
cerity of the advocate. How lovingly and tenderly 
and earnestly he pleaded for his beloved Hungary— 
his mistress, his divinity, his everything! The ex- 
ample is unique. Demosthenes might inflame the 
Athenians against Philip, but he urged them in his and 
their own tongue to resist his and their own enemy. 
Cicero might inveigh against Catiline, but he was the 
advocate of those whom he addressed, and the pictures 
that he drew of probable evils were dangers personal to 
his hearers. Chatham and Pitt, Burke and Mirabeau 
and Patrick Henry, what was their task in comparison 
to his? They and all of them touched the ever-respon- 
sive chord of self-interest and of common advantage in 
the audiences that they controlled. What man since 
Peter the Hermit’s day could preach a crusade based 
purely on sentiment? Indeed, the comparison fails, 
for the one appealed to the deep religious sense of all 
who heard him, while the Hungarian exile could only 
promise those vague and unsatisfactory rewards that 
follow the accomplishment of a duty most uncertain 
in its obligation, but most certain in its danger. 

Yet he almost succeeded. And indescribably great 
must the credit of this mitigated success be held. The 
nation was startled from its propriety, and Reason, 
confused and hesitating, ready to leave her throne. 
But there was one voice still more potent than Kos- 
suth’s, even then. It came from Washington’s last 
resting-place, and warned the American people with 
prophetic voice of the dangers of foreign adventure. 
And finally the people, returning to their sober senses, 
heeded the charmer’s voice only so far as it com- 
manded their love, respect, and sympathy. 

But when America refused to interfere in behalf of 


Kossuth Memorial Celebration 185 


his people Kossuth knew that he must surrender all 
hope; he must submit to the inevitable and trust to 
the slow processes of time to do what he had failed to 
do. Yet the world knew and honored him. With 
pen and sword and voice he had done his best, and 
what epitaph is worth those simple words? He had, 
indeed, done his best for the land that he loved. He 
has just died full of years and of honor, but he saw, 
as age began to dim his eyes, the flag of our Union, 
crowded with ever-multiplying stars, foremost among 
the nations. He saw and felt that the experiment of 
government for the people and by the people was 
triumphantly made, and that the result would silence 
doubt, convince sceptics, and enfranchise the world. 
He lived and died a patriot in the best, the truest, the 
noblest sense. And if I may, in closing, link Kossuth 
in my thoughts with our own country, I would ask 
of Providence that in the hours of trial every one of 
our people may love America as Kossuth loved Hun- 
gary. With such Americans we may direct the 
destinies of the world for the happiness of mankind. 





Py yaa god 7 
CG Sp Ce Sy q 5 
EEE FBS \ ie Ve N 
- 3 P nN yy 
Gy 8) 


do. = 
Pe ©) 


aA 
BA ay 2 
<p 


a | Se | ) Wwe e ae, 2 
4 call cS WEE 2 ris ENO “Tiina 


(She eS pede ee ST ts 
Ne er San Veda lim, Shey MCT “Y)) KS 
r 9 a i Ss — Ba Nissi Hid ( fe J UNC € w Jed IS 





Vil 


JACKSON ! 


will not say of the American people, but of the 

Democratic party. All great organizations, 
political or religious, must have their day or days of 
rest, when the hero or saint is honored by those who 
revere his memory, admire his deeds, or find it profit- 
able to hold out his example. The day that we cele- 
brate is one of those, and serves to recall the services 
and perpetuate the fame of Andrew Jackson. As 
Montaigne once said that he loved sometimes to “ wrap 
himself up in the memory of his father,’’ so may we 
find it wholesome to take counsel with the wise and 
brave men who speak from beyond the grave. 

This is emphatically Jackson’s day. The battle 
that it more immediately recalls, so far as its import- 
ance may be measured by the destruction which it 
caused, scarcely deserves the name. We who have 
gone through the ghastly experiences of a civil war 
that dragged itself through four long, weary years, 
marked by constantly recurring battles, each one of 
which desolated thousands of homes, can scarcely 
understand that this skirmish on the Mississippi’s 


E hia: 8th of January is one of the halting-places, I 


1 An address before the New York County Democracy, January 
9, 1888. 
186 


Jackson 187 


muddy banks should have risen to the dignity of a 
battle. And yet it destroyed the prestige of British 
arms on American soil forever; it averted from New 
Orleans the danger of capture at a time when in- 
describable atrocities were tolerated by public opinion ; 
and it crushed the insolence which the late “rebels”’ 
had had to contend with since the recognition of their 
independence. 

By a strange freak of fortune, it was fought after the 
peace had been made, and in the interval between the 
signing of that peace and the time when the news 
could pitch and roll its slow way across the Atlantic. 
If Morse had but anticipated his marvels by half a 
century, the battle would never have been fought, 
Andrew Jackson would never have been President of 
the United States, and we would not have been here 
to-night to do him honor. But the blind goddess, 
Fortune, had evidently determined that our hero 
should have that signal opportunity to show what a 
hot-headed, strong-minded, reckless, fearless, earnest 
Scotch-Irishman from South Carolina could do, and 
she saw to it that no telegraph, or carrier pigeon, or 
fleet steamer interfered with him. As the convenient 
deities of Homeric times disposed all things so that 
their favored children should meet their foes under 
such conditions that they could not well avoid de- 
stroying them, so she, anxious lest the short period at 
her command should rob her of her opportunity, 
dropped some fatal poison into the British general's 
mind, and he, bereft of reason and prudence, must 
attack and assault his well-entrenched foe. It took him 
just thirty minutes to lose all—except his honor. His 
life and the lives or liberty of 2600 men paid forfeit 
for his rashness. In that half hour Andrew Jackson 


ae 


188 Jackson 


became the foremost man of America. He had in- 
flicted on the British army the most humiliating and 
the most complete defeat that they had ever suffered, 
and this at the cost of eight men killed and thirteen 
wounded. The descendants of Cromwell’s iron sol- 
diers, of the men whose backs the enemies had never 
seen, fled on that day in confusion and panic before 
the ragged militia whom it was part of their profession 
to despise. A more signal and complete victory for 
the one side and a more humiliating discomfiture for 
the other history does not record. Might not the 
triumphant General exclaim, like Henry the Fifth after 
Agincourt : 


When, without stratagem, 

But in plain shock and even play of battle, 
Was ever known so great and little loss, 
On the one part and on the other! 


And when slow Peace reached our shores at last, and 
was received, as she deserved to be, with wild exulta- 
tion and delight, she found that the prestige of Ameri- 
can arms had been raised in the twinkling of an eye— 
to be more accurate, in the brief period of twenty-five 
minutes—to an unexpected height. From that time 
forth it was reasonably certain that the military 
qualities of the American people would be spoken of 
and treated with decent respect. 

The hold which military men gain by their exploits 
upon the affections of their fellow-citizens must ever 
be a subject of wonder and despair to the civilian. 
All the wisdom of Minerva, all the learning of the 
schools, all the eloquence, the civic worth, and the 
moral qualities that may be united in the person of 
nature’s most gifted children, must give way when the 


Jackson 189 


conquering hero, clad in his martial glory, appears 
upon the scene. For him no rewards are too brilliant, 
no prizes too high—for him women smile and poets 
sing. Him, for want of a better name, we call the 
providential man, and reverently point out as the 
chosen vessel, the standard-bearer, the anointed before 
whom all others must bow in homage. And it is 
natural that this should be, so long as the sword 
typifies the guardianship of national honor, the pro- 
tection of domestic safety, and the integrity of political 
institutions. Jackson had been a lawyer, a district 
attorney, a congressman, a judge, and a senator, but 
none of his admirers had ever dreamed that his per- 
formances in civil life entitled him to especial regard. 
As a practising lawyer, he was always ready to settle 
his disputes by the rules of the code of honor. As a 
judge, he no doubt rendered decisions more or less 
satisfactory to his suitors, but as he wisely abstained 
from putting his opinions in writing, he succeeded in 
obtaining a negative fame which is, perhaps, all that 
he could aspire to in that field of usefulness. As a 
senator, he made few speeches of which we have any 
record. His silence may have been due to another 
cause than reticence or modesty. Jefferson said to 
Webster that he had often seen him rise in his seat and 
try to speak—an effort which the rage that choked him 
made abortive. When he lost his temper—a not un- 
common occurrence—he was an uncomfortable friend 
and a still more uncomfortable enemy. Nothing was 
easier for him than to get into a frenzy of rage, nothing 
pleasanter than to fight. He was, in a sense, the 
typical man of the age in which he lived and of the 
rough country in which he passed part of his life. His 
duels were frequent; in one he slew his adversary, but 


190 Jackson 


it does not appear to have occurred to him that there 
was anything reprehensible in the transaction. He 
would have considered it eminently proper for his 
adversary to mete out the same treatment to him- 
self. 

And even when he professed—with the sincerity 
that was part of his nature—a deep religious devotion 
and a thorough belief in divine revelation, he did not, 
as far as we are informed, appear to have regarded 
these matters as entitled to sorrowful retrospection. 

In various instances he showed an arbitrary and re- 
sentful spirit which his best friends must condemn. 
His exercise of authority was sometimes harsh and 
oppressive; in Florida, in New Orleans, in Washington, 
his proud and aggressive spirit led him into acts which 
cannot stand the test of impartial criticism. And yet, 
with all his faults, Andrew Jackson became the idol 
of our people. His popularity was, and remains, an 
aecepted and abiding factor in our history. Even 
now, after our Civil War has rooted up so many tra- 
ditions and rudely removed so many of our land- 
marks, we look back upon him with mingled pride, 
gratitude, and admiration. We feel to this day the 
benefits of his services and forget the defects, as we 
contemplate the greater beauties, of his character. 

If we are asked, then, ‘““Why is Andrew Jackson a 
popular hero? Why is this day celebrated and set 
apart by so many of his people?”’ the answer is easy. 
He was brave, unselfish, patriotic; he was of the 
people and with the people. He was honest in his 
acts, his words, his intentions, and men felt that there 
was not a day of his life, nor an hour of a day, when 
he would have hesitated one instant to lay down his 
life for his country. He was emphatically and truly 


Jackson 1gI 


a man of the people. I mean this in its real sense; 
not that he failed in his education, or intelligence, or 
moral training to be above the average of his country- 
men, but that his instincts were all in favor of the 
people,—their rights, their interests, their honor. 

The majesty of Washington, the unruffled dignity 
of Jefferson, the old-time courtesy of their successors, 
was followed by the unrestrained, impulsive, ex- 
plosive methods which accompanied the old hero 
wherever he went. The calm serenity of the self- 
contained gentlemen who preceded Jackson placed 
them upon a higher plane than the mass of their fellow- 
citizens. Democrats they certainly were in their 
theories of government, in their love of the people, in 
their hatred of tyranny, in their devotion to the popu- 
lar cause, but at the same time the decorum of their 
manners and the dignity of their bearing bore a close 
resemblance to those traits which are popularly sup- 
posed to be the accompaniments of gentle birth and 
exalted political station. Jackson was unlike his pre- 
decessors in these respects, and it might well be said 
that for the first time his fellow-citizens saw in the 
White House a man like themselves. And yet he, 
too, was a gentleman, not less than those who pre- 
ceded him. 

In the truest and best sense, no finer gentleman 
lived in the land than he. The courtesy which is ever 
tender to weakness, and respectful to woman because 
she is a woman; the chivalry that makes a man the 
prompt champion of those who need a champion; the 
self-respect which keeps from meanness, or treachery, 
or coarseness,—all these things he had in the highest 
degree. He was a gentleman like Bayard or like 
Sidney, without fear and without reproach, and if he 


192 Jackson 


lacked at times some of the graces, he never wanted 
the true characteristics, of a genuine knight. 

Perhaps the strongest element in Andrew Jackson’s 
character was his courage. Not only the courage to 
defy death on the battle-field or on the duelling- 
ground. The soldier’s courage is not rare. Readi- 
ness to die for honor or for country’s sake is common 
in all nations. We have learned from a bitter ex- 
perience that courage of that kind is a plant that 
grows all over our country and flourishes at the North 
and at the South, in the rich man’s home, the farm- 
house, the workshop—everywhere. But there is an- 
other kind of courage,—the courage to defy opinion 
and the fears of self-interest,—because of conscience ; 
the courage that Pilate lacked when he rendered an 
unjust judgment because he feared the people; the 
courage that can stand unshaken when expediency 
throttles duty and interest demands silence while 
Truth strives to raise her voice; the sort of courage 
that is not quickened by the cry of the bugle, nor the 
sound of the drum, nor the eyes of thousands looking 
on, nor by the love of glory, but the courage of solitude 
and the quiet study; of the obedient pen, of silent re- 
flection; the courage which will not be put off with 
“Tt may not be,” but will firmly resolve “It must be,”’ 
when the right of the question is decided. This is the 
rare courage to which I allude. It was this courage 
that marked Andrew Jackson all through his life. 
“T care nothing about a clamor,’’ he once said; “Tide 
precisely what I think just and right.” And our 
people have a faculty, I think, of discovering this 
courage when it exists in their servants. Andrew 
Jackson is not the only Democratic President who 
has been willing to take the risk of clamors. He is not 


Jackson 193 


the only one who has shown himself ready to do his 
duty to the people that honored him, by speaking 
fully and freely what should be said, leaving the con- 
sequences to blossom and bear such fruit as might be 
best. The moral laws are the same in high office as in 
common, every-day life. To be honest and brave is 
simple duty in the one case as in the other,—a 
commonplace truth, but one too often forgotten. 
Allied to this quality in Jackson’s character was 
another which shines conspicuously through his life,— 
I mean his sterling, burning, absorbing love of country. 
Ambitious of personal fame he may have been,—he 
doubtless was. He could not but feel that he was a 
leader of men and strive for the position that nature 
had fitted him to fill. But through all his public acts, 
utterances, and efforts he was always a patriot. The 
love of country was a part of his fiery nature and 
burned fiercely through his life. The enemy of his 
country was the enemy of Andrew Jackson, and as 
such, it became the personal business of Andrew Jack- 
son to punish him for daring to be hisenemy. Perhaps 
in our day of frequent and rapid communication with 
other parts of the world, with a constantly flowing 
tide of immigration to bring us into daily and friendly 
contact with alien nations, the fierce and aggressive 
love of country, which animated such men as he, may 
have been modified and may have lost some of its 
intensity. But however this may be, the patriotism 
of the early heroes of our country was of an uncom- 
promising kind. They had, it is true, a sentimental 
attachment for France, and for the brave men who 
had helped the young States in their distress, but 
beyond this they had nothing to draw them to 
the peoples of Europe. The Atlantic was an angry 
13 


194 Jackson 


barrier to intercourse. The recollections of the war 
were still alive and rankling. New York had but too 
good reason to recall the horrors and cruelties that 
had been wreaked upon her people, and it was not in 
those early days of the century that British or Hessian 
soldiers could be remembered without execration. 
Andrew Jackson was not only brave and patriotic, 
but he was also honest. Not in the vulgar sense of 
that word do I use the expression. It is no praise— 
or should not be—of a public man to say that he did 
not filch money from the public treasury or enrich 
himself by doubtful means. His honesty was of a 
higher and broader order. It was of a generous 
quality. It lay in his hatred of falsehood and of 
trickery, in his directness and his truth, in his single- 
mindedness, in his readiness to adopt straight and 
open ways. He might be and often was wrong in his 
hasty conclusions, in his rash advocacy of those whom 
he loved, in his fierce warfare upon those whom he did 
not respect. His feud with Henry Clay, his conviction 
that that great and honored statesman had been 
guilty of dishonorable conduct toward himself, ended 
only with his life. Evidence had no weight with him 
when he had made up his judgment. But no enemy 
could ever say that his ways were tortuous or dark. 
He was as honest to the adversary as to the friend, and 
if the people loved and honored him during his life, it 
was not only because of his conspicuous services on 
the occasion that we now recall, but also and mainly 
because they understood him, and knew how brave 
and patriotic and true and honest was this irascible 
warrior. Heincarnated not only American democracy, 
but American manhood, in its best qualities, and if he 
gained such an ascendancy upon American minds it 


Jackson 195 


was owing to the fact that he, more than any other man 
of his day, represented in his person those manly 
virtues which the American people most cherished as 
their own. His failings were overlooked and for- 
given, if they did not enhance his popularity. The 
instinct of our people will rise in angry rebellion at 
those vices which spring from a mean and sordid 
nature,—those are too deep-rooted to be cured,—but 
they will generously condone the rank growth of a 
generous vitality, the rich exuberance of an ardent 
temperament, the exaggerated and even violent mani- 
festation of honest sentiments springing from pure 
sources and laudable ambitions. It mattered little to 
the American people of forty years ago that their 
favorite hero had been involved in countless brawls, 
in many duels, in angry quarrels without cause,—the 
opinion of the day tolerated these things. But the 
people knew that the treasury of the nation, the honor 
of a woman, the flag of the country, were all and al- 
ways safe in Andrew Jackson’s hands. 

General Jackson’s life was one brilliant success, but 
the real greatness and beauty of his character never 
shone forth so truly as when the hand of death was 
laid gently upon him. The tough cords of the old 
soldier’s life did not snap suddenly from over-tension. 
He had ample time to look the destroyer calmly in the 
face and become familiar with his features. He was 
ready for the conqueror, and made no murmur nor 
repined at the sufferings which preceded the final 
moment. With the patience of a martyr and the 
gentleness of a tender woman, with absolute sub- 
mission to the Divine will, with unflinching courage 
and stoical endurance, with a persistent love of country 
that only died when he died, he watched his own 


196 Jackson 


approaching dissolution, forgetting his own agony to 
comfort those whom he loved. All the anger and re- 
sentments of former days had been burned out by 
much suffering, nobly borne, and it was the real 
Andrew Jackson, true, generous, kindly, pure, and 
brave, who finally surrendered his soul to his Maker 
and his memory to his countrymen. 

Why is it that alone we, of the Democratic faith, 
claim this man as our own? Is there anything in his 
fame to repel men of any political faith? Did he not 
serve all his brethren? Was not his heart large 
enough to embrace them all? Let us hope that the 
only reason is that we seized upon and first appro- 
priated him as one of our political patron saints. We 
cannot well afford to part with or divide him. His 
principles are ours, his objects are ours, his political 
ideas are ours. He loved his country, and he loved 
the whole of it. While he was battling at New Orleans 
under such fierce odds, the Hartford Convention was 
hatching treasonable doctrines which might have been 
warmed into life but for his victory of that day. 

But we may well feel assured that vigorous as would 
have been his repression of rebellious acts, that re- 
pression would never have been followed by persistent 
hatred or malignant cruelty. His brothers of Con- 
necticut or Massachusetts, even if it had been necessary 
to coerce them into good behavior, would still have been 
his brethren. To use past differences between sections 
of his country as a means of aggrandizement would 
have been as foreign to his nature as meanness or 
deceit. The men of Kentucky and Tennessee would 
never have been forgotten by him as the heroes of 
New Orleans. And if he lived now, with his great, 
generous heart beating in his heroic breast, on what 


Jackson 197 


side, think you, would he be? On ours, when we pro- 
claim the universal brotherhood of American citizens, 
or with those who coin past horrors into present politi- 
cal agencies and seek to capture the country by divid- 
ing it? Perhaps the lines of difference between our 
great political parties are dimly drawn. It may be 
that the old and distinguishing characteristics have 
been erased by time and newly developed interests. 
But we may proudly and confidently assert that the 
party of General Jackson, the Democracy of to-day, 
will recognize and tolerate no dividing line between 
the States of this Union; that the fatal war that 
blotted out the only cause of difference between two 
great sections is at an end, and rejoice that cruel 
and harsh as was the experience of that war, it has 
been compensated by the one fact that the fatal line 
of demarcation between North and South has been 
washed away in blood. And when demagogues, 
hungry for spoils and eager for success, seek to revive 
bitter memories and to re-create old animosities, the 
party of Jackson will stand upon its old ground, it will 
claim equal rights for all our people, it will recognize 
no differences based on ancient feuds, but will seek to 
adjust its methods to its aspirations, that its triumph 
may be the triumph of true, national, vigorous, 
generous democracy. 








Vill 


MEMORIAL OF CHARLES O’CONOR ! 


HE name of Charles O’Conor has within the last 
op year been added to our mortuary roll. If our 
practice of recording the memorable traits of 
departed brethren were merely intended to erect a 
monument to the perpetuation of their fame, we might 
in this instance intermit our custom. Hzs fame has 
passed into history; whatever there may be that is 
durable in a lawyer’s greatness belongs to him by the 
common consent of his contemporaries. 

The career of our deceased brother was one of con- 
stantly growing brilliancy, until he attained the high- 
est eminence which a lawyer can reach. He was the 
leader of our bar. No rival claimant disputed his 
supremacy. His pre-eminence was recognized even 
while he lived. His was the rare privilege of retiring 
from active life of his own will, neither coerced by 
failing powers nor admonished by hesitating clients 
that his usefulness was on the wane. When the end 
did come, the final seal was placed upon the judgment 
of his contemporaries. The press, the bar, the people, 
united in the verdict which half a century’s unremit- 
ting work had earned. 

1 Read before the Association of the Bar of the City of New York, 


January, 1885. 
198 


Memorial of Charles O’Conor 199 


It is difficult on occasions of this kind to avoid 
the language of apparently extravagant eulogy. Affec- 
tion often misleads the living members of our calling 
into an exaggerated expression of the virtues and 
merits of our dead. Indulgent custom \leals leni- 
ently with this failing, and makes allowance for its 
exercise. But we may recall the career of the de- 
parted in this instance without fear of such criticism. 
That he was free from the weaknesses that beset, in 
some form, all that is human, it would be folly to assert; 
that he did embody all the qualities of courage, honor, 
industry, and fidelity which make up the highest 
standard of professional excellence, it would be in- 
justice to deny. The chief justice of our highest 
court, while presiding at the meeting held for the 
purpose of paying a tribute of respect to the memory 
of Mr. O’Conor, spoke of his professional record as 
“one unrivalled in our annals for length of service and 
brilliancy of professional achievement.’”’ This deliber- 
ate language embodied the universal thought. 

Every man’s life, when it is worth recording, leaves 
behind it a lesson worth remembering. More es- 
pecially those of the same profession or pursuit may 
ponder upon its teachings with advantage. How and 
why was success attained? Was it the ripe fruit of 
long study and patient labor? Was it taken by 
storm in the temple which genius forces open, laughing 
at time and difficulties and conventional rules? 

Was it bought at a higher cost than it deserved? 
Did the fruit leave the aftertaste of bitterness when he 
that plucked it recalled the means by which it was 
secured? These questions are easily answered where 
Mr. O’Conor is concerned. 

The success of Charles O’Conor was not due to any 


200 Memorial of Charles O’Conor 


combination of favorable circumstances, nor to any 
of those brilliant gifts that dazzle the eyes of men and 
take their judgment captive. It was from the be- 
ginning logical. Other things being equal, it was as 
certain as the harvest is certain after the seed has been 
sown. He had all the qualities, moral, physical, and 
intellectual, that compel success. Of a vigorous and 
commanding presence, of a rugged and almost ag- 
gressive conscientiousness, of a strong, acute, and dis- 
cerning mind, he was singularly endowed by nature 
to fill his part. Indeed, no combination short of this 
could produce the result of that half-century’s work. 
When we examine the reports of the cases in which he 
was engaged, remembering the minute labor that he 
always bestowed upon their preparation; when we 
consider the nature of the questions that he had to 
grapple with, the time given to consultations, and the 
writing of opinions, the days spent or wasted in court, 
the work of that lifetime seems absolutely marvellous. 
Nothing but unremitting and unrelieved toil could 
achieve such a result. Whata story of self-denial and 
patience, of labor loved for its own sake, of professional, 
all-absorbing zeal such a life reveals! If constant 
toil, leavened by an ever-watchful conscience, ascends 
to heaven as a prayer, no faithful monk, whose suppli- 
cations began with the dawn and lasted through half 
the hours of the night, more earnestly and persistently 
clamored at heaven’s gate. Of our friend indeed it 
might be said: ‘‘To labor was to pray.”’ 

The real secret of Mr. O’Conor’s success—if that 
term may be applied here—lay in no one element of 
his character. He could not have succeeded without 
either. Men have lived, and are living now, as brave 
as he; others as industrious, others as true, others as 


Memorial of Charles O’Conor 201 


able intellectually. But the union of these qualities to 
the same extent, in one man, has probably not existed 
in our generation, or in his. Without the courage, he 
would have halted before many a danger that he over- 
came. Strike out the indomitable industry, and the 
enemy would have sown the tares that no after-labor 
could destroy. Without that sleepless conscience, the 
whole would have been marred and mutilated. Many 
a richly gifted nature, fired by the noblest ambition, 
has failed because the industry, the honor, or the faith 
was gone—or slept. 

The necessary limits of such a paper as the present 
render even a cursory examination of Mr. O’Conor’s 
professional life out of the question. No effort at 
condensation could successfully epitomize the history 
of the professional battles in which he played a con- 
spicuous part. There were few contests of any 
magnitude or importance in which he was not called 
on to participate. The suitor who succeeded in 
securing his co-operation felt assured that the victory 
would be his if ever-wakeful vigilance and untiring 
effort could secure it. The responsibility, the care, 
the anxieties, were transferred to, or at least shared 
by, one strong enough and willing to take them all to 
himself. If there was any weapon in the arsenal of 
professional warfare that could help to win the battle, 
it would be found and used. What he once told an 
associate in the Forrest case, as it was ripening for 
trial, might have been said of every great controversy 
in which he was engaged: ‘I have not left a stone 
unturned under which there crept a living thing.”’ 
And all the while, not content with unearthing the 
proofs and precedents and laws that bore upon his 
case, his watchful eye never left his foe. It may well 


202 Memorial of Charles O’Conor 


be—indeed it must be—that he sometimes erred; but 
in forensic contests he showed that, as in war, the 
greatest leader is not the one who never blunders—for 
such a one never lived,—but he who soonest sees and 
repairs the blunder. The result of all this expenditure 
of power and of labor was not only success at the 
moment, but even now, when we look back and 
study what time has left of these efforts, we are filled 
with wonder and admiration at the perfect and artistic 
finish of the performance. His arguments are pitiless 
in their logic; they leave no room for escape, no loop- 
hole for evasion. There is no trusting to rhetoric, no 
reliance on doubtful precedents, no assumption of 
premises not based on principles. Authorities seem- 
ingly against him are stripped of their sophistry, and 
shown to be what they are. The sources of judicial 
error are traced with the certainty of mathematical 
demonstration. And to do this he is armed with a 
command of language admirably fitted to his mind 
and purpose, clear as the language of science, avoid- 
ing ornament, deflecting neither to the right nor to the 
left, simple but perfect, a creation of his own,—original, 
unique, and inimitable. 

It may suggest itself to the minds of our younger 
generation, that with Mr. O’Conor the last of that 
race of lawyers has gone. When he commenced to 
practise, our now imperial city was still in its infancy. 
At the time of his admission, New York counted less 
than 200,000 inhabitants. Brooklyn was a mere rural 
village. The new appliances for facilitating and ex- 
pediting labor had not come into use. The lawyer’s 
business was not done by steam and electricity. 
Stenographic reports, which nominally lghten his 
work, did not then expand the volume of testimony 


Memorial of Charles O’Conor 203 


into appalling masses of inextricable and bewildering 
verbiage. Courts were not crushed under the ever- 
increasing weights of their calendars, nor impatient of 
speech, and anxious only to prevent the advocate from 
making clear to them that which they can never get 
by intuition, and seldom by briefs, unaided by oral 
argument. The trial of causes, while exhibiting less 
of the faculty of the advocate for witty personalities 
and irrelevant humor, gave him full scope to develop 
his case and to make it clear to the court and jury. 
The secret of nursing a trial into months, of filling 
octavo volumes with miscalled evidence, of burying 
the issues under depths beyond the reach of human 
ingenuity, was not yet found. The judge took his own 
minutes, and was generally satisfied with a narrative 
from the lips of each witness. He used this simple 
record to settle the case. Occasional injustice may 
have resulted from these primitive methods. Whether 
the system was better or was worse, it was certainly 
different from that now in force, and time alone will 
tell whether the excited atmosphere in which both 
client and counsel now live will ever give the world 
such men as Charles O’Conor and other leading ad- 
vocates of a past generation. 

The courage of Mr. O’Conor, of which mention has 
been made, was of a rare order. Whether he was one 
of the very few men who are born without the sensa- 
tion of fear, or whether his strong judgment and 
cool will had taught him to control and thrust aside 
all weaker impulses, it is not useful to inquire. His 
courage was large enough to cover every emergency 
and to brave every kind of danger. Indeed, it as- 
sumed a very rare form in our nation and age, viz., 
the ability to disregard and face the disapproval of 


204 Memorial of Charles O’Conor 


the public. Many men whose personal courage is 
equal to all requirements of the battle-field have 
quailed before the adverse manifestation of public 
opinion. It may fairly be claimed, that the fear or 
the hope that public sentiment would be for or against 
his action, in a given case, never influenced him to any 
appreciable extent. He took counsel from his own 
judgment and tested the results by his own sense of 
right. Nothing that his reason approved and his 
conscience endorsed could be omitted in deference to 
the prejudices or sentiments of others. On many 
questions of vital importance to our national policy, 
he was at variance during the last quarter of a century 
with the general sentiment of his countrymen. He 
never concealed his opinions, nor apologized for ex- 
pressing them. When he was misled into harsh 
judgments of men, he did not hesitate to recall words 
the injustice of which was made apparent; but his 
opinions on public questions remained unchanged, 
even when they were most unpopular. It is not a 
little to the credit of his fellow-citizens that he never 
forfeited their affection by differing from them, and 
retained their respect even when he most offended 
their judgment. 

In one instance only did Mr. O’Conor show an over- 
sensitive regard for public sentiment and deem it his 
duty to defend himself against unjust charges. Many 
members of this Association will recall his appearance 
here for the last time, to demand an investigation 
into certain published statements reflecting upon his 
treatment of Mrs. Forrest after the trial of her suit. 
He was probably the only member of this body who 
thought that such loose and palpably unfounded ac- 
cusations should be noticed. But a suggestion to that 


Memorial of Charles O’Conor 205 


effect met with indignant rejection at his hands. The 
investigation was had, and not only showed the 
charges to be absolutely untrue, but exhibited in a 
striking degree the chivalrous character of his ad- 
vocacy in that celebrated case. 

But there is no trait in Mr. O’Conor’s character 
which is more deserving of mention here than that 
which is perhaps the least known—I mean the tender- 
ness and gentleness of his heart. To those who only 
met him in the contests of the courts, it will seem 
scarcely credible that this stern, unbending exterior 
was but the outer covering of a nature as gentle and 
loving as a woman’s. The real man was not the one 
that was seen, admired, and feared. Only a few had 
the privilege of knowing the true man, when neither 
the exigencies of his profession nor a certain ostenta- 
tion of sternness held in concealment the lovable ele- 
ments that were so strong within. 

Strange to say, it was the very consciousness of his 
weakness—if so inadequate and inaccurate an ex- 
pression may be used—that made him the more timid 
of betraying emotion. He was aware that if he 
yielded for a moment to the promptings of his gentler 
nature, his self-control would fail him. All those who 
knew him well bear witness to this. A tale of distress, 
a bit of pathos in literature, a touching poem, would 
strike and thrill a chord of tenderest sympathy. In 
the intimacy of private life—with those whom he 
trusted and loved—his feelings sometimes asserted 
their mastery over his artificial nature, and then this 
clear, practical, vigorous advocate would recite his 
favorite verses or repeat his favorite prose passages 
from great authors while the tears coursed down his 
cheeks. 


206 Memorial of Charles O’ Conor 


An intimate friend of Mr. O’Conor recalls in a letter 
to the writer of this memorial some touching illustra- 
tions of this tendency. 


The pathetic element [he says] was strong in Mr. O’Conor’s 
nature. JI have many proofs of it, but the following will 
answer our purpose: In 1867, we were passengers together 
on the evening boat for Albany. Nearly all others had 
gone to their rooms, but it being a balmy summer night, 
we lingered, walking on the aft deck. Mr. O’Conor spoke 
of the leading members of the Bar when he began the 
practice of his profession. He extolled Thomas Addis 
Emmet in particular, as a man of undeviating rectitude, 
of wonderful power as an orator, a grand, natural man, 
free from all artificial pretensions—‘‘He was my idol; I 
have seen none other like him.’’ He then spoke of William 
Sampson, whom he had known well, and quoted fragments 
of his article on the ‘Irish Emigrant’’: ‘‘He was born in a 
land which no longer was his; in the midst of plenty his 
children ate the bread of poverty; he toiled for a landlord 
whose face he never saw; he heard there was a great 
country beyond the sea where ie 

Up to this I was not looking at Mr. O} Conor.) Wiytelt 
that his emotion was increasing and his voice tremulous. 
He had now lost control of himself, and suddenly rose. 
The light shone full on his face. I saw that tears had 
started from his eyes. Partly regaining his habitual con- 
trol, he said: 

“You must forget this. Pathos always overcomes 
me—for that reason I avoid it. But there is no great 
offence in it to-night. Are we not both sons of the Irish 
Emigrant?” 


Nor was it morbid sentiment, the outcome of an 
overwrought mind dwelling only on itself; it was a 
real softness of heart, manifested as well in the practical 
channels of human sympathy. How many times his 


Memorial of Charles O'’Conor 207 


ready and generous hand dried the tears of the un- 
fortunate, how often he has clothed the naked and 
fed the hungry, no man can tell. What his right hand 
gave, even his left hand never knew. But kindly 
deeds will blossom up and smile at the efforts of their 
author to keep them concealed. If Erskine’s beautiful 
thought be true, that at the last day men’s good deeds 
will stand by them, their advocates, to defend and 
guard them, he will not at that hour be defenceless. 

Mr. O’Conor never forgot a service or a kindness. 
No man ever befriended him in vain. It was not in 
his nature to forget anything, a service or an injury, 
and in his earlier days at least he could bide his time 
and punish the offender with a vigorous hand. But 
he was still more faithful when he was dealing with one 
who had served him. A very prominent banker of 
New York once did him a personal service of a peculiar 
kind, neither involving money advances nor any con- 
siderable sacrifice, but yet one which could only be 
asked of and rendered by a friend. Years after, Mr. 
O’Conor was called upon by this gentleman to lend 
him professional assistance in an affair involving 
millions of dollars. The assistance was given promptly, 
efficiently, and satisfactorily. When asked to name 
his compensation, Mr. O’Conor refused to fix or accept 
any. He had not forgotten the service that he had 
received. Every importunity failed, but at last, upon 
being told by the client that he would never venture 
to seek his aid in the future if he persisted, Mr. O’Conor 
said to him, “‘ Then fix my fee and give it to a charity.”’ 
The result was a contribution of $5000 to an orphan 
asylum, that sum being, according to the client, a very 
small compensation for the service rendered. 

This is a single illustration of two of Mr. O’Conor’s 


208 Memorial of Charles O’Conor 


marked characteristics—fidelity to friends and gener- 
osity in money matters. Indeed, money was ever 
secondary in his estimate of professional life, and his 
disinterestedness was as conspicuous as his learning or 
his ability. The gentleman of whom mention has 
just been made knew Mr. O’Conor better and more 
thoroughly than most of those who enjoyed his con- 
fidence. The earnest tribute that he has paid Mr. 
O’Conor in conversation and in correspondence, the 
many traits of gentle, kindly, considerate friendship, 
which he has to relate, would depict him in his true 
colors and make a picture of surpassing moral beauty 
if it could here be reproduced. But his glowing 
language of eulogy may well be adopted here, as em- 
bodying the opinion of those who had fathomed the 
depth and explored the wealth of that gifted nature: 
“Can you wonder that I cherish and venerate the 
memory of such a man, to whom the Almighty had 
given the brightest intellect, the tenderest heart, and 
the most fearless spirit?”’ 

Mr. O’Conor’s end was such as he would have 
wished. He may be said to have twice crossed the 
Valley of the Shadow of Death. It was a familiar 
face, and a friendly one, that smilingly called him 
away. He had had all of life that it could give, and 
as the infirmities of old age began with gentle admoni- 
tion to remind him that the night was at hand, he felt 
that his work was done. Life without labor would 
have been beyond his ability to endure—beyond his 
courage, perhaps, to face. So, with the old faith of 
his fathers strong in his heart, with an unstained 
record and a certain hope of glorious life beyond the 
grave, he fell quietly asleep. The beautiful lines of 
his favorite poet, Milton,—lines that he loved to quote, 


Memorial of Charles O’Conor 209 


—come back to us a fitting close to this tribute of 
affectionate reverence: 


So may’st thou live, till like ripe fruit thou drop 
Into thy mother’s lap, or be with ease 

Gathered, not harshly plucked, for death mature— 
This is old age. 








ID. 


MONTESQUIEU ! 


Brede, was born at Chateau de la Brede, 

near Bordeaux, in the month of January, 
1689. He lived sixty-six years, and died on the 
tenth day of February, 1755. If we should omit 
his literary performances from the record of his life, 
and consider his existence apart from his books, the 
record would end here, and it might be said of him, 
as has been justly said of some royal personages, that 
he was born, he lived, and he died. Not only was 
that life uneventful, but it was studiously shut off 
from the public eye. He shrank from those who 
would peer into his privacy, and reserved that part of 
himself for his family and his friends. He loved fame, 
that is, the honorable repute that grew out of the in- 
tellectual productions with which he enriched the 
world. Apart from these, as Horace, whom he re- 
sembled in many ways, has said of himself: “He 
sought the secret way and unfrequented path of life 
that steals away unknown.” 

That he was thoroughly a gentleman in the best 
sense of the word—courteous, gentle, kindly, and 
unassuming,—all who knew him testify; withal a 

1 Introduction to a translation of The Spirit of Laws, 1899. 
210 


ikl eee, Charles Louis Secondat de la 


Montesquieu 211 


genuine Gascon in the sparkle of his speech, in the 
southern brogue that he patriotically exaggerated, in 
his wit and effervescence, in all the qualities that he 
derived from the sunny atmosphere of his native 
Gascony and the ruddy wines that flowed so freely 
from the land that he dearly loved to the end. 

Writers with an ingenious turn for the discovery of 
analogies have compared him to Voltaire, who was 
born but a few years after Montesquieu and survived 
him many years. Voltaire was undoubtedly a man 
of rare genius and unequalled skill when it came to the 
work of destruction. To demolish ancient things was 
the task in which he excelled and which he delighted 
to perform. His bitterness against the social system 
of which the Church was an integral part displayed 
itself with all the venom of personal enmity; it was 
flavored with the passion of revenge rather than a de- 
sire to promote right and to prevent wrong. Through- 
out all his aggressive life this feature was apparent; 
it existed in fact and showed itself by unmistakable 
symptoms. Nor was it without reason. In his early 
youth he had been subjected to personal indignities 
at the hands of blue-blooded men who considered it 
the privilege of their caste to disregard the claims of 
those whose pedigree was not as long as their own; 
they laughed to scorn the demands for satisfaction of 
such, however grievously and wantonly they had been 
injured. When Voltaire sought to obtain redress for 
deliberate affronts, they were repeated in most brutal 
and offensive form; the only compensation that he 
received was free quarters at the Bastile and abundant 
opportunity, in the silence of solitary meditation, to 
nurse his hatred and to lick his wounds. The friend 
of Frederick II. never forgot the humiliation of his 


212 Montesquieu 


early life, and the sharpness of both his pen and tongue 
may be traced in a measure to these days of wrong 
unavenged and unpunished. The Church was the 
ally and prop of the social scheme which permitted 
these wrongs, hence the Church must pay the penalty. 
His rage increased with his years, until he boasted, in 
the heat of his madness, that one man might destroy 
the religion which twelve men had founded. 

But Montesquieu had no personal reasons for dis- 
liking either Church or State. No insult had embittered 
his early life, his unwounded pride never festered at 
the recollection of personal maltreatment. He was 
always decorous, conservative, and prudent. In the 
rich soil of his generous nature no seed had been sown 
from which hatred could grow. He was a lover of the 
human race, and sought to promote its happiness. 
If, in the effervescence of his early youth, he allowed 
his brilliant pen to enter upon dangerous fields of con- 
troversy, he never intended other than good results. 
He meant to cure, not to kill; he hoped to make, not 
to mar; he sought to repair and to improve, not to 
tear down and to destroy. His warm Gascon nature 
exulted in the mere fact of existence, the sunshine of 
the merry Gascon country was in itself a delight. He 
would have had the whole world as happy as himself. 
He loved the companionship of friends, he delighted 
in the society of books. He had never known one 
single sorrow in his life to resist the soothing influence 
of these silent and eloquent companions. They were 
part of his life; indeed, the best part, the only part by 
or through which we know him, the only part through 
which he survives. 

Montesquieu became famous ina day. His Persian 
Letters, written when he was thirty years of age, 


Montesquieu 213 


charmed, delighted, and irritated his countrymen, and 
especially his countrywomen, who were quite as ready 
and able as the male part of the population to make a 
writer’s fame. The Persian visitors whom he invented, 
and whose comments upon the society and religion of 
France he gives to the public, were very free in their 
criticisms of what they saw, and it is not to be won- 
dered at that the guardians of public morals looked 
with suspicion and alarm upon the trenchant wit of 
the Gascon sage, who dared to criticise abuses and to 
laugh at practices which time had rendered venerable. 
There was, indeed, much that might create grave con- 
cern in the minds of those who studied the letters of 
the Persian travellers. We must not forget that the 
roots and branches of State and Church were closely 
interwoven and intertwined. The blow aimed at the 
one was in effect a blow at the other. Time showed— 
and Voltaire lived to see the day—when the destruc- 
tion of the existing State must needs bring with it a 
shock and disturbance to the Church. The result of 
the Letters was that the contagion spread which the 
conservatism of Montesquieu would fain have arrested 
and cured. He did not delay the current nor stem 
the rising tide. Perhaps by calling attention to 
abuses he aided in producing the calamity that he 
would have deprecated. He gave aid and comfort to 
the enemies of the social system that he would have 
willingly saved; finally, by making these attacks 
plausible, half a century after he was at rest, every- 
thing gave way that he would have preserved, and the 
foundations of the world were shaken. 

Even when the Letters were at the full tide of success, 
many readers who were attached to the existing system 
of society looked with disfavor on their cold disregard 


214 Montesquieu 


of respectable barnacles. D’Argenson said: ‘These 
are reflections which a brilliant man can easily make, 
but which a prudent man ought never to print.” 
Marivaux expressed the class sentiment with accuracy 
when he said that a man should be sparing of his wit 
on such subjects. Montesquieu himself realized that 
he had become an object of suspicion to the “ official 
classes,’ who sought every occasion to slight him, 
while they admired his ability—of which they thought 
he had too much. Indeed, it was darkly suggested 
that he was an infidel and possibly might be a traitor! 
These comments had their effect, so far as to induce 
him to disclaim the paternity of a work which it might 
not be quite safe to recognize as his offspring. 

The sale of the Persian Letters was all that their 
author could wish. His Jesuit secretary, Pére Des- 
molets, had confidently predicted the result: ‘The 
Letters will sell like bread,’’ he had prophesied. And 
so they did. They expressed, in delightful speech, 
the thoughts of many who were neither able nor daring 
enough in fitting phrase to attack the powers of the 
day. As for himself, his reputation was, from that 
moment, established as a wit. He was un homme 
d’esprit. Perhaps he was surprised at the success that 
he had achieved, possibly a little alarmed at the con- 
struction that had been put upon the criticism of his 
Persians. He had never desired to be looked upon as 
an iconoclast. As he afterwards says: “I am not a 
theologian; I am a historian.’’ If he used the knife, 
it was rather as a kindly surgeon than as a wilful 
shedder of blood. He took no delight in angry con- 
troversy. © Men forget,’” he said, “that when 
represent a Turk I must make him talk and act and 
write. like a Turk.’ ) The trouble: is that his) Qurks 


Montesquieu 215 


talk too much like Parisians and not enough like 
genuine Turks. Their real nationality is but ill dis- 
guised by their flowing robes, and the laughing face 
of the Bordeaux wine-grower is seen through their 
foreign mask. 

The Causes of the Greatness and Decline of the Romans, 
next issued from Montesquieu’s pen, would have as- 
sured his fame had the Spirit of Laws not belittled it 
by its own superiority. His treatise on the Romans is 
marked by the same perseverance and research as his 
book on the laws. He delves at the roots of history 
to learn how from general causes events have grown. 
He is no believer in chance; there is a philosophy of 
history with its rules and principles, and they must be 
studied and found before we can know the nature and 
reason of things. “It is not chance that rules the 
world,’’ he says; ‘‘witness the Romans, who had a 
constant succession of triumphs while they managed 
their government on a certain plan, and an uninter- 
rupted series of reverses when it was conducted on 
another. There are general causes, either moral or 
physical, at work in every monarchy, exalting, main- 
taining, or overcoming it.’’ Upon this theory, he has 
examined symptoms to ascertain causes, and has, 
with a beauty of style that well became the dignity of 
his subject, first taught men that the records of the 
past might be found to contain sermons as well as 
traditions, lessons as well as facts, and materials for 
prophecy mingled with the dust of ages. 

When the Spirit of Laws appeared, the work upon 
which his title to the admiration of posterity must de- 
pend, he was well known to the literary world as the 
author of the Persian Letters, but it is not clear that 
he was much helped by the celebrity thus acquired. 


216 Montesquieu 


If there is one reproach in the arsenal of Gallic de- 
nunciation from which a man seldom recovers who 
aspires to instruct his people, it is the suggestion that 
he is not a serious man (um homme serteux), and many 
thought, no doubt, that the putative father of these 
disrespectful Persians was too witty to be serious. 
How could he write a grave and instructive book and 
at the same time masquerade in Persian silks to the 
tune of Parisian music! The professor’s gravity did 
not sufficiently appear, to entitle the aspiring peda- 
gogue to a diploma. 

Although the success of the Spirit of Laws was not 
immediate in France, it was not long in doubt. In 
England, intelligent opinion immediately seized upon 
the work, and received it with enthusiasm. This was 
due in a great measure to the fact that the author had 
been a close student and admirer of the British Con- 
stitution, and had adopted the shortest road to the 
British heart by the intelligent tribute to the superi- 
ority of that vague, shadowy, and unwritten charter 
of British liberty. 

The practical genius of the English mind was 
happily shown on this occasion. The trans-channel 
admirers of Montesquieu must needs know something 
about this meridional wise man, who had studied, 
assimilated, and understood and expounded the con- 
stitution of England as intelligently and satisfactorily 
as though he had opened his eyes to the light at London 
or Liverpool. Inquiry into his residence and occupa- 
tion naturally developed the fact that the expounder 
was not only a book-writer but a wine-grower, where- 
upon a British logic suggested that the man who wrote 
so excellent a book must also grow excellent wine. 
The orders for the wine grown at La Brede flowed in 


Montesquieu 217 


as rapidly as the orders for copies of the Spirit of 
Laws, so that Montesquieu’s frugal mind rejoiced at 
this double success, which delighted his pride and 
filled his purse. ‘‘The success of my book in that 
country,” he said, “contributed to the success of my 
wine; but I think that the success of my wine has done 
still more for the success of my book.’’ Whether this 
estimate was based on an overestimate of the bouquet 
of the wine or an underestimate of the greatness of 
the book, we have no means of ascertaining. The 
fame of the La Brede brand rests wholly on tradition. 

It may not be without interest here to note that 
Montesquieu, though frugal and modest in his personal 
expenditures, was at heart generous and kind. He 
was a ready giver, but he concealed his charities as 
though they were grievous sins. Ostentation was 
abhorrent to his nature. His simplicity of hfe was 
such as to suggest avarice, whereas it was only indiffer- 
ence to display. He was quite conscious that he did 
not live and dress and shine like the gaudy members 
of his own circle, and felt that love of money for its own 
sake would be charged against him. But he repudi- 
ated the reproach. ‘I have never made any display 
in the way of expense,’’ he said, “but I have never 
been avaricious. I know of no task, however easy 
of performance, that I would have performed to earn 
money. I have, I think, increased my store, but it 
was rather because I flattered myself that I thereby 
showed a certain kind of ability, than from any desire 
to become rich.” He could not remember to have 
spent four louis for show, but many a gold piece 
quietly left his purse to relieve a needy applicant. 

One instance may be cited. An English watch- 
maker once wrote him: ‘“‘I think of hanging myself; 


218 Montesquieu 


but I believe I would not do it if I had one hundred 
crowns.”’ To which Montesquieu immediately re- 
plied: “I send you one hundred crowns; do not hang 
yourself, my dear Sully, but come to see me.’”’ How 
many English clockmakers he thus saved from volun- 
tary strangulation we do not know; he was the last 
man to record the number of those or of others whom 
he rescued from despair. 

That Montesquieu did think highly of his master- 
piece we know from his own expressions. He exulted 
with a schoolboy’s delight at the completion of his 
task, and as his weary pen traced the last words of his 
immortal work, his memory recalled the tempest- 
tossed companions of A’neas as they touched the 
shores of the promised land. ‘“‘Jtaliam, Italiam!”’ he 
exclaimed. The joy of triumph and the hope of re- 
pose combined to make this the happiest moment of 
his life. The long labor of twenty years was ended, 
and the prize of endless fame secured. Like the 
Augustan poet, he felt sure that he would not wholly 
die, for he had erected a monument more enduring 
than brass. But the labor and anxiety were almost 
more than he could bear. As he revised his last 
proofs, he said: ‘‘This work has well-nigh killed me; 
Iam going to rest. I shall labor no more.” He lived 
eight years longer, but made no effort to add to his 
fame or to his claims upon the world. 

It is curious to note how Montesquieu was at first 
alone of his immediate circle to realize and adequately 
measure the value of the Spirit of Laws. Whether the 
long and faithful labor of years had satisfied him that 
he could not have thus striven in vain, or the equipoise 
of his trained mind allowed him to judge as correctly 
as though he were passing on the performance of a 


‘ 


Montesquieu 219 


stranger, he knew from the outset that the book 
would win him renown. He called his intimates and 
asked for their opinion. The critic who showed the 
most favor kindly declared that there was enough in 
the work to make it valuable as a note-book from 
which material might be drawn for another treatise. 
The sternest and possibly the most candid of the 
critics bluntly declared that the best plan would be 
to throw the manuscript into the fire as the safest 
method of guarding the author’s reputation from the 
injury which it would receive from publication. But 
he trusted to his own judgment rather than to theirs. 
Undismayed and undisturbed by his comforters, he 
quietly sent his work to the printer, and awaited the 
result without anxiety. 

If the Spirit of Laws escaped the blazing logs of the 
chateau, thanks to the self-confidence of the author, 
another work of his was less fortunate. He had 
written a history of Louis XI., one of the most extra- 
ordinary and complex characters in the records of the 
French monarchy. Mr. Watson, in his Story of France, 
says of Louis XI. that he was “‘a great king, a thor- 
oughly bad man, and utterly unscrupulous in method, 
yet his life-work was upon the whole a benefit to man- 
kind. Hewascrafty, deceitful, cruel, and calculating.” 
Perhaps a man may be a great king even if his char- 
acter is made up of such ingredients. But as he did 
exhibit them in his life, it is not to be wondered at if 
historians, with one accord—still according to Mr. 
Watson—‘‘decry him as a beast unclean.’’ The 
estimate of a French historian of modern times prob- 
ably comes nearer the truth. He says that Louis XI. 
was not a great king nor a good king, but still a king! 
Our curiosity to know what so competent a judge as 


220 Montesquieu 


Montesquieu would have held upon this point will 
never be gratified. The carelessness of the secretary, 
who threw into the flames the complete and priceless 
manuscript, has inflicted a permanent injury upon 
mankind. Our regret is only heightened by the few 
samples that we have of the work that the world has 
lost. Who but Montesquieu could have described 
Richelieu in fewer words and have given a more ac- 
curate photograph of this towering figure of French 
history ’—‘‘ Richelieu made his king play the second 
part in the monarchy and the first in Europe; he de- 
graded the sovereign, but he ennobled the throne.”’ 
The necessary limits of this paper will not permit 
even a brief attempt at analyzing the Spirit of Laws. 
D’Alembert has made the effort, and has written many 
and dreary pages to show what Montesquieu intended 
to accomplish. But no author is more difficult to con- 
dense than Montesquieu. He is a dealer in epigrams, 
and possessed the talent to a rare degree of squeezing 
the sap out of an idea and of crystallizing it into apt 
and pungent words. So marked is this faculty in him 
that one of his contemporaries, Buffon, who did not 
err in the same direction, accounted for this concise- 
ness by saying that it was due to the author’s defective 
vision. His eyes had failed many years before his 
death, and he was obliged to dictate to his daughter, 
who performed for him the same pious office that 
Milton’s children performed for their father. As his 
memory was bad, says Buffon, he was obliged to 
formulate in his own mind brief sentences that he was 
able to carry while the dictation was made, and in this 
way he became accustomed to the form of expression 
which is predominant in his work. Buffon may be 
right, though this compensation to short-sighted men 


Montesquieu 221 


is not usually given. If it were, the Spirit of Laws 
would not stand out as a shining example of a style 
that has never, in epigrammatic excellence at least, 
been surpassed. 

The foundation of the work was the attempt to find 
those common principles and emotions which, oper- 
ating upon men of every climate and degree of civiliza- 
tion, produce certain results. He was satisfied that 
those principles existed, and if found, would afford a 
scientific explanation of what without their aid would 
seem too chaotic and inexplicable. Or, to come nearer 
to his own language, he rejoiced to find in “the nature 
of things” the explanation of so many different laws 
and customs. He was often discouraged and dis- 
mayed at what he termed “‘ the majesty of his subject.”’ 
Time and again he flung away the unfinished page, and 
turned his back in despair upon his herculean task. 
But his courage and the philosophy of his tempera- 
ment never yielded long to debilitating influences. 
He resumed his labors and continued them until he 
was able to say, like Correggio, “I, too, am a painter!”’ 

Montesquieu has been spoken of, and was no doubt 
considered in his day by many, asareformer. And yet 
the reforming spirit in him was so mild as to be almost 
innocuous. He did condemn the Inquisition—but 
who did not even then shrink in horror from that 
awful and mysterious tribunal? He advocated the 
abolition of torture—who would restore it to-day? 
He was supposed to be a champion of religious tolera- 
tion, but went no farther in his anxiety to give the 
benefits of generous forbearance to dissenters than the 
restoration of the Edict of Nantes. Yet that edict 
gave no equality, only faint-hearted toleration, to the 
men who believed in the same religious doctrines once 


222 Montesquieu 


held by the king who formulated the edict (assuming 
that Henry IV. ever entertained any fixed belief on 
religion). Montesquieu was not an advocate of what 
to-day we consider the elementary rights of conscience. 
He was willing that the Huguenots should be per- 
mitted, with definite restrictions, to practise their own 
religious rites, but he was not in favor of admitting 
new beliefs to disturb the state and complicate the 
machinery of political society. In other words, if he 
was in advance of his day in these matters, his con- 
servatism so dominated his theories of reform that 
before the eighteenth century had ended he had long 
been outstripped in the race for toleration by the 
majority of his people. 

The peculiarities of his style have been criticised, 
and affectation imputed with scant justice. His 
methods were certainly unusual; his brusque transi- 
tions, the sudden breaks in the continuity of an argu- 
ment, the dramatic outburst taking the place of a 
formal conclusion, astonish the modern reader by 
their unaccustomed and unexpected appearance. But 
they fulfilled their object, for they captivated the at- 
tention as they stimulated the curiosity of the reader. 
He sought to be read not only by the scholars and 
purists of the day, but by the many brilliant if frivolous 
people who dabbled in letters and only dreaded one 
thing ina book—to wit, being bored. The deadly sin 
of a writer was to fail in making the attention of the 
reader a prisoner, willing or unwilling. The solid gold 
of learning and wisdom was not enough; the artist’s 
skill must call attention to the value of the metal so 
that the taste might be charmed while the mind was 
satisfied. There must be for the reader of the day 
frequent halting-places where he might stop and get 


Montesquieu 223 


his breath. He was not always able to keep his mind 
stretched on the rack of continuous attention; he 
must be allowed at times to turn a corner abruptly 
and catch a new view of men or things. 

A few among the countless instances of Montes- 
quieu’s skill in cheating the sluggard and decoying the 
unwary will illustrate the novelty, the charm, and the 
effect produced by this accomplished artist. Who 
would not prefer an aphorism to a sermon, if the 
former conveyed all the instruction of the latter? As 
he himself has said: ‘‘It is not enough to make one 
read, he must be made to think.”’ His chapter on the 
“Idea of Despotism’’ contains exactly three lines. 
Elere it is: 

CHAPTER XIII. (BOOK V). 
Idea of Despotism 


When the savages of Louisiana want fruit, they cut the 
tree at the root and pluck the fruit. This is despotic 
government. 


? 


His chapter on ‘‘Torture,” of which he was a con- 
stant and earnest adversary, closes thus: 


So many illustrious writers have denounced this prac- 
tice that I dare not speak after them. I was going to say 
that it might be adapted to despotic governments, where 
everything that produces fear enters into the government 
policy; I was going to say that the slaves in Greece and 
Rome .. . ButI hear the voice of nature crying out 
against me. 


His definition of taxation has become classical, per- 
haps commonplace: ‘‘Each citizen contributes to the 
revenues of the state a portion of his property in order 
that his tenure of the rest may be secure.”’ 


224 Montesquieu 


His objection to severe punishment for trivial 
offences: ‘If we examine the cause of all defiance of 
the law, we shall see that it is to be found in the 
failure to punish crime, not in the moderation of the 
penalty.” 

He explains the unpopularity of the English by say- 
ing that their arrogance is such that even in peace 
“they seem to negotiate with none but enemies.” 
But of course this was much more than one century ago. 

The proper limit of conquest: ‘‘There is a natural 
limit to conquest, namely, the power of assimilation.” 

Of liberty he says: ‘‘ Liberty consists in the ability 
to do what one ought to desire and not being forced to 
do what one ought not to desire.” 

Of poverty: ‘““A man is not poor because he has 
nothing, but because he does not work.”’ 

To multiply extracts would swell a modest preface 
into a volume; the temptation to pursue so easy a 
task must be resisted. 

The close of his life was marked by the same kindly 
and gentle philosophy that he had exhibited from the 
beginning. He appears to have been a devout and 
consistent Christian, although making but few pro- 
fessions and preferring to lock up in his own heart the 
sentiments that he entertained on the most important 
problems that can occupy the mind of man. He was 
not only a believer in, but a great admirer of, the 
morality of the Gospel. He declared that he could 
not share the humility of the atheists, but preferred to 
believe that his soul was immortal and that he him- 
self was not perishable like the beasts of the field. 
When death was imminent, he looked it in the face 
without bravado and without fear. He performed 
the religious duties required by his Church with 


Montesquieu 225 


decorous solemnity. His spiritual adviser said, as the 
end was approaching: “‘No man, better than you, sir, 
can realize the greatness of God.’ “No one,” he 
replied, ‘“‘ knows better the littleness of man.”’ 

Much and lavish praise waited upon the Spirit of 
Laws, but the tribute paid by Voltaire during Montes- 
quieu’s own lifetime is the one which best expresses in 
fewest words the opinion of his admirers. It is all the 
more precious because Voltaire never loved him, and 
he himself was never reckoned among Voltaire’s 
friends: ‘‘The human family had lost its title-deeds— 
Montesquieu found them and restored them to their 
owner.” 











xX 


IN MEMORIAM—HON. MORRISON R. WAITE 
31 March, 1888 


mund Burke. A _ recognition of this truth 

brings us here together to-day to testify our 
reverence for our deceased and honored brother, for 
he represented in his person and in his office, more 
than any other man of our nation, that justice which, 
working the salvation of our people by regular and 
decorous methods of adjustment, is intolerant of 
“violence, oppression, and sword-law.”’ 

What greater homage to the majesty of justice and 
the supremacy of law does the history of any nation 
present than the spectacle of which this reunion is but 
a fractional part—a great nation of sixty millions 
following to his grave this plain citizen whose only 
title to distinction was, and is, that he faithfully per- 
formed the duties of his station. But that station is 
so exalted, so noble, that office signified so much, that 
when of its incumbent it may be truly said that he 
has worthily fulfilled his trust, all the honors paid are 
well earned, and the epitaph may be written in a line. 

It was the privilege of our honored brother to form 
part of and preside over a court which is unique in the 
history of civilized nations. Those who fondly look 

226 


J USTICE is the great concern of mankind, said Ed- 


Hon. Morrison R. Waite 227 


for something of divine inspiration in the written con- 
stitution that first moulded, directed, and welded to- 
gether the members of this young and struggling 
republic, must find material for encouraging specula- 
tion in the few lines that created this tribunal. To its 
hands have been committed interests that never had 
been, and nowhere this day are, entrusted to the de- 
cision of plainly clad and unarmed men. Not only 
does this body possess the rare power to sit in judg- 
ment on legislators, the direct creation and mouth- 
piece of powerful communities, not only may these 
few judges by their fiat annul the most carefully con- 
trived plans of lawmakers, and paralyze their action, 
but they may summon before their bar sovereign 
States—the municipal representations of organized 
millions—to hear the exposition of their duties, to be 
warned as to the limits of their power, to be instructed 
as to their rights and proper functions, to learn the 
part that they must perform in the family of States 
to which they belong. States rich, prosperous, and 
jealous of their sovereignty must bow in submission 
to a civilian’s voice, and yield their preference, their 
pride, their jealousies, to the only power that they dare 
not defy. What a lesson, what a keen vision of the 
future and its growing needs, what a giant stride in 
the path of peace and law, the creation of this body 
teaches, exhibits, and illustrates! The struggling and 
tottering States of a century since have grown into 
three times their number, and into such wealth and 
power that comparisons and statistics can scarcely 
keep pace with the reality. The sixty millions of 
yesterday promise to be one hundred before this dying 
century has ripened into another; schemes of ag- 
grandizement, of policy, of finance, of expansion, of 


228 Hon. Morrison R. Waite 


admission, of exclusion, rise, grow, clash, succeed, or 
fail, but all these millions feel and know that whatever 
peril may threaten our nation, whatever ills may fly 
from the scarcely opened box that contains the secrets 
of our future destinies, no fatal harm can befall us so 
long as that small body of men, sitting in that quiet 
court-room in the Capitol, retains its power and com- 
mands respect. The sovereign State that appears as 
a suitor before that court knows that it has abdicated 
the one power that men most sedulously guard, the 
power to redress fancied wrongs by prompt violence. 
The surrender of this right, more than aught else in our 
scheme of government, marks our Constitution as the 
wisest device that ever sprang from human minds. 
A fatal hour did come when the compact was broken 
and the voice of the law was drowned in the clamor of 
battle, but the day has gone by when mad rebellion 
against the law finds a friend or an advocate, and those 
who love their country may, like the Roman poet, as 
he touched upon a like passage in the history of his 
people, turn away and cry out that it grieves and 
shames us to think of scars and crime, and of brothers 
—and of altars overturned and dishonored. 

Of such a court the departed judge was the honored 
chief. The chief magistrate of the nation, the states- 
men and lawmakers, the judges and the bar, all 
joined to honor him and to mourn his departure from 
his accustomed places. The highest qualities of the 
true judge were his: the native integrity which had 
grown into the very life; the anxious desire to do 
right; the kindly heart that was ever ready to miti- 
gate, never to aggravate, the harshness of the law; 
the unaffected exhibition of a genuine manhood, great 
enough to rely upon itself, too great to seek for tributes 


Hon. Morrison R. Waite 229 


of admiration or homage not fairly earned. Just, 
true, gentle, kindly, clear in thought and clear in 
speech, faithful in his intentions and useful in his life, 
he has earned the honor that we now pay him. He 
has deserved—and this crowns the glory of his life— 
to be named as one of an illustrious line of public 
servants. He may, as they have done, safely trust 
his memory to his people. 





ae eX 


CRS. ~~ “BX 





XI 


FRANCE ! 


France had a cold in her head, the rest of Europe 

sneezed,—an epigrammatic tribute, I take it, to 
her genius, her power, and, perhaps, her restlessness: 
or rather to that overflowing activity of life that would 
not be restrained by narrow geographical or political 
limitations, but must look abroad for moral and some- 
times physical conquests to satisfy the cravings of ex- 
uberant health. No disease could touch her that did 
not move the world to ready and sympathetic unrest. 
How could it be else? Was she not the mother of 
civilization, the queen of the arts, the champion of 
every great and generous cause? The tramp of her 
victorious armies had been heard with almost weari- 
some monotony on every battle-field of Europe from 
Charlemagne to Saint Louis; from Saint Louis to 
Louis XIV.; from Louis XIV. to Napoleon. What a 
record of heroism! what a catalogue of heroes! And 
as she pursued her career of moral and physical 
triumphs she effaced the traces of war with the same 
hand that smote; for she sowed the seed of a glorious 


e was once said, with little exaggeration, that when 


1 Response to the Toast, ‘“‘ The President of the French Republic,” 
at the dinner to Whitelaw Reid on his return from France, April 
16, 1892. 

230 


France 231 


democracy while her philosophers, scientists, and lit- 
erary men prepared the way for the brotherhood of 
nations. Who can gainsay her title to the gratitude 
of mankind? I need not rehearse her claims nor 
produce her witnesses before an American tribunal. 
Her blood, her treasure, her sympathy—she spent all 
that she had to make American liberty her debtor. 
Your honored guest will tell you that the tenderness 
that she once lavished on America she has never taken 
back. Whether or not that love has been fully or 
constantly requited, whether in the dark hours of 
desolation, when she wept in sackcloth and ashes and 
refused to be comforted because her children were not; 
whether in the time of humiliation her brethren of 
America heard her voice and wiped her tears, why 
should we ask? She never did. Her trust and affec- 
tion were always as of old. Whatever else she might 
question she could not doubt that those who honored 
Washington would mourn with the bereaved country- 
men of Lafayette. She comforted her bruised heart, 
in sore defeat, by remembering the trials and sufferings 
that culminated in the common glory of Yorktown. 
So long as fortune could not obliterate the records of 
the past, the jewel of American love and sympathy 
must be hers forever. And then, while still weak from 
loss of blood and soiled with the dust of defeat, she 
raised the torch of Liberty, and, waving it that the 
world might be gladdened by its rays, she called 
America to witness that there was a new bond between 
the two nations. Thus did she consecrate the old 
allegiance by a gift embodying the glories and triumphs 
of the past, the union of the present, and the aspira- 
tions of the future. . 
The president of the French republic! What a 


232 France 


title, what an opportunity, what a burden! To direct 
the destinies of the nation that knew Richelieu and 
Henry IV., Louis XIV. and Napoleon; to be the fore- 
most man in a nation of thirty-six million gallant 
people, to represent before the world her rights; to be 
responsible for the performance of her duties; to see 
that no detriment shall befall the young republic that 
has fallen heir to such priceless treasures! This is no 
light task. He must remain faithful to sacred mem- 
ories and march to the music of a brilliant future. He 
must be the pioneer of the people in the emancipation 
of thought and the development of freedom. He will, 
if faithful to his trust and equal to its performance, 
justify great expectations and fulfil great prophecies. 
A heavy task, this, to fall on one man’s shoulders! The 
republican president who lives in Paris, and the re- 
publican president who lives in Washington, with one 
hundred million people behind them, are the real 
representatives of the new civilization. To them is 
committed the standard of all that is best in modern 
progress. 

The president of the French republic bears a name 
well fitted to commend ‘him to his people’s affections. 
In the battle for freedom that began a century ago the 
great Carnot was at his post and faithful to his duty. 
History reports his unflinching fidelity to republican 
principles as one of his claims to the gratitude of 
posterity, but history clothes him with a far stronger 
title to posthumous veneration. He was a republican, 
it is true, but, first and always, he was a patriot. The 
love of country was stronger than the love of party or 
the scruple of consistency. We, who have heard the 
echo of Washington’s voice warning us against the 
destructive potency of party spirit as the danger most 


France 233 


likely to disrupt our union, may uncover in reverent 
homage to the Carnot of the French republic, the 
organizer of victory. It was the same Carnot who 
dropped and brushed aside his personal preferences to 
join hands in patriotic forgetfulness of self with the 
tottering Napoleon of 1814. For that Napoleon, what- 
ever the blemishes upon his matchless genius, then in- 
carnated in his person, though his star was on the wane, 
the traditions, the honor, the patriotism of France. 
It was no time for ponderous Senates to discuss nice 
questions of constitutional law, nor to dilate in sonor- 
ous periods upon the abstract blessings of civil liberty. 
The enemy were thundering at the gates, the soil was 
trodden and polluted by the invader, the grim warriors 
of Marengo, Austerlitz, and Moscow were doing their 
heroic duty, but melting away before the swarms of 
their united enemies. Then the patriot Carnot has- 
tened to the side of the lion at bay, and urged his 
countrymen to forget all things except the insulted 
land of their fathers. ‘‘Ah, Carnot,’’ said the em- 
peror, ““I have known you too late!’’ And yet, when 
he was the manufacturer of royalty and the master of 
a continent, he had said to this same Carnot: ‘‘ You 
may have all that you want, as you want, and when 
you want.” But the stern republican was not then 
bound to yield allegiance to the man who had brushed 
aside the republic. The hour came with the nation’s 
humilation, and he only proffered his service when 
it could not be rewarded. Well might the German 
Niebuhr, glowing with admiration at this heroic and 
patriotic citizen’s deeds, declare: ‘‘If all that I had in 
the world were a crust of bread, I should be proud to 
share it with Carnot.” 

And now the grandson is the chief magistrate of the 


234 France 


nation that Napoleon ruled and covered with renown. 
Is he worthy of this conspicuous honor, and may we 
hope that his hands will hold up the dignity and pros- 
perity of his people? The years of his probation have 
answered the question. It has been the rare good 
fortune of the republic to find among her citizens a man 
who knew how to fill this exalted part. Happy the 
people who possess the man required for their emer- 
gency! happier still the people who esteem him at his 
worth and honor him accordingly! Party differences 
are subdued and silent when he challenges judgment. 
The people know him and repel partisan criticism of 
their faithful servant. For such he is, and such they 
know him to be. No craving for a wider sphere of 
uncontrolled action, no selfish hope of personal ag- 
erandizement, have ever marred his conduct or dimmed 
his fame. He has learned, perhaps from the traditions 
of his household, that the first citizen of France is 
simply the most honored servant of the people; that 
the duty of a president is to execute the laws, not to 
make them; that the function of his office is to en- 
lighten the nation, not to endanger its peace or to 
destroy the liberties of his people. The president of 
the French republic is the pedagogue of Europe; his 
chair is a pulpit whence he is to teach that Liberty 
means light; that she carries the book and pen where 
she may, the sword only where she must; that his 
first duty is to teach obedience to the law by prac- 
tising it; to accept, not to dictate; to be vigilant and 
true and honest and brave in his allegiance to the 
sovereign, for the law is his master, even when he 
reviews one hundred thousand men. 

Truisms these things seem to us. A successor of 
President Washington who would dream of usurping 


France 235 


the power confided to his hands, and of placing himself 
above the laws, could hardly hope for anything more 
serious from an American audience than to be hissed 
off the stage. More probably a continent would 
shake with laughter, and a performance intended to 
be dramatic would end in burlesque. The American 
people are not without a sense of humor, though it is 
often inadequately expressed. There are springs in 
their intellectual make-up that may be touched with 
effect, and they would rise to all the requirements of a 
mirth-provoking situation if any citizen, whether in 
the White House or out of it, should act upon the 
theory that he was indispensable to the welfare of the 
nation. The savior of society has no place here. He 
is not classed among our vertebrate animals, and the 
popular diagnosis would at once recognize the presence 
of mental disease. Hellebore was the reputed cure in 
the old Roman days; the strait-jacket or mild con- 
finement is the more modern method. But we have 
not ten millions of armed men in our close proximity, 
most of whom may, in the chances of diplomacy or 
accident, be our enemies to-morrow. The waves and 
fogs and storms of the Atlantic are the steady and in- 
expensive bulwarks to our main frontier, and as to 
other possible foes—but we have none. 

Not so, however, in the old land of France. The 
man on horseback still lives in legend and tradition. 
He has done great things in days gone by, and may, 
perhaps, forget that he is no longer a factor in the 
peaceful destinies of the country. One thousand 
years of unremitting activity have surely earned the 
right to repose. Glory may have its uses, but glory 
palls in time upon the taste, and its music loses all 
charm for modern ears. France wants a leader who 


236 France 


will tap the boundless resources of her genius for the 
pursuits of peace. He must insist that she shall freely 
extend the new domain that she has chosen for herself. 
True, a shadow is still on the wall, and the day may 
come when her children shall be summoned again to 
try the cruel chances of war. But should the fated 
day come—which may Heaven avert !—she will remem- 
ber that of her fathers, the Gauls, it was said by their 
Roman foes that they did not fear funerals. This is 
a sombre theme, and we all prefer to watch her growth 
in the field of her own selection, the arts and sciences 
and literature, that adorn and delight and bless our 
race. 

Honor, then, to this, her chief magistrate! May he 
succeed in his mission of peace! The experiment of 
free government is being made by a nation under 
whose soil lie sleeping fifty generations of men. They 
were born and bred under a system that made one 
man better, by accident of birth, than all other men; 
what wonder if she has not, at one bound, mastered 
the excellences of a wholly different scheme! The 
habits of a nation may not be shaken off in a day. 
Nor, on the other hand, must we forget that democracy 
and republicanism are not convertible terms. France 
has been for a century the most democratic of nations. 
As one of our own great leaders of thought once said: 
‘True democracy does not consist in saying, I am as 
good as you, but rather in saying, You are as good as 
I.’ She knows this lesson by heart. True republican- 
ism consists in obeying equal laws with ready and 
cheerful alacrity. Why should not the young republic 
live up to this simple canon of republican conduct? 
Adversity has bowed the head of her people in hu- 
miliation and sorrow. It were idle to deny that old 


France 237 


wounds are not quite healed, or that retrospection is 
unmixed with bitterness. But the nation has turned 
its face to the light of a new dawn. Another genera- 
tion is coming forward that will be slow to abandon 
the fruits of their fathers’ trials, and will readily be 
taught that liberty is better than servitude; that it is 
better to be a citizen than a subject; that to serve 
one’s country is better than to serve a king. We, of 
America, may be pardoned if we rejoice in that belief 
and exult in our possession. May we not hope that 
the old nation who was our friend when we sorely 
needed friends may join hands with us, not for sel- 
fish purposes and selfish aggrandizement, but for the 
benefit of the human race? Made up as we are of so 
composite a texture, representing every nation of the 
world, because each one contributed from its best 
citizens to our prosperity, we may truly say that 
nothing that interests mankind is foreign to us. 

And in drinking the health of the honored president 
of the French republic we will, with grateful recollec- 
tions and renewed affection, pledge the fair land that 
still lives in undiminished brilliancy to instruct and 
charm the world. 











* 


a ose 
raed 


ECD SK; = 








XII 
FRANCE ! 


HE fact—or assumed fact—that the gentlemen 
(| for whose especial benefit and edification I 
am called upon to speak will probably not 
understand one word of what I shall say gives me 
renewed and cheerful confidence. Their traditional 
courtesy will enable them to stand the severest test of 
protracted addresses without betraying anything but 
ill-suppressed delight, while the tried courage of their 
race will not permit them to flee from occasions of 
hardship and peril. It is not, we all know, their practice 
to turn their backs on friend or foe. 

I am pleased, too, that they shall not be able to treat 
my expressions of laudation and gratitude as strained 
and conventional expressions finding here a suitable 
stage for display, but let me tell them in all sincerity— 
and this, at least, I wish that they may understand— 
that hyperbole ceases to be itself when American 
citizens seek to express their grateful recollection of 
French aid, French sympathy, and French generosity. 
Our guests, as the benefactors, might think us ex- 
travagant of speech when we recall the dark days 
which their fathers turned into sunshine, but we who 

1 Address to the French Delegates, on presentation of the statue 
of ‘‘ Liberty Enlightening the World,” June, 1885. 

238 


France 239 


have harvested and now enjoy the fruits of the seed 
sown by them would indeed be cold of heart if we 
measured the words that recalled their deeds in our 
behalf. 

The splendid gift which these gentlemen have 
carried from their own soil to find a home in our bay 
is not the gift of a king or an emperor or any govern- 
ment whatever. It is not the fashion of political 
bodies to manifest international regard by costly 
presents. Many inconveniences might attend such a 
practice if adopted—not the least, perhaps, the neces- 
sity of reciprocity. Besides this, the lesson of the 
Trojan horse is not without its value. We may well 
hesitate to become the recipients of favors which 
might imply too much. But the spontaneous offering 
of a people,—and of the only people who stood the 
sponsors of the infant nation that needed help as no 
nation ever did before,—this may well be accepted as 
a symptom of the same affection that approved itself 
so long, so well, so often. 

This bronze memento, out of which so many far- 
reaching guns might have been made, typifies and 
perpetuates the common aspirations of two great 
nations, and symbolizes the hope that not only they 
and their children shall see and live in the light of 
liberty’s torch, but that all nations and all people 
shall be warmed and made happy by its rays. For 
the instinct and spirit of liberty is not one of caste, nor 
of sect, nor of narrow limitations. It embraces the 
universe with a bond of brotherhood that throws its 
girdle around the earth as the magnetic wire that daily 
draws the nations into closer and more fraternal con- 
tact. But for this broad and all-embracing charity 
the voice of suffering America would never have reached 


240 France 


the heart of France, and Freedom’s knight-errants 
would never have ventured their all in a quarrel not 
their own. 

As their pioneer Lafayette described it: “As soon 
as I heard of American independence my heart was 
enlisted.”’ 

This was the sentiment of that brilliant and gallant 
Court which was soon to be scattered, ruined, and 
destroyed. Even the kind-hearted king shared the 
common madness, for in him and in them it was a sub- 
lime folly that only hastened the impending and fatal 
doom. There was much truth in the comment of one 
of the members of the royal family, that Louis XVI. 
signed his death-warrant the day that he signed a 
treaty with the United States. But be this as it may, 
the cause of American independence must have ex- 
ercised a strange fascination on the hearts of men, 
especially of that gifted people—when royalty herself 
paused to listen to the charmed accents of the Circe 
Liberty on the very verge of destruction. 

An occasion like the present is peculiarly fitting for 
a retrospective view of our relations with the people 
who now come to us with a new link to add to the old 
chain. We are, and pride ourselves on being, a practical 
people—not given to sentiment, slow to emotional acts, 
governed by reason, and apt to sneer at the ostenta- 
tious display of Latin effervescence. In point of fact, 
I take it that no people are more susceptible to these 
very influences than our people—none more ready to 
act on prompt impulses, none better able to act in har- 
mony with genuine sentiment that strikes a correspond- 
ing chord in their breast. And if no people other than 
the French would or could have designed and carried 
out without public patronage or public moneys this 


France 241 


sentimental idea of perpetuating in imperishable 
bronze the common glory of two great nations—none 
I think, could more readily respond to such a suggestion 
than our own. 

I have said that this was a popular, not a political 
offering. The report of the original committee shows 
how earnest the promoters of this great scheme were 
that its true character should not be misunderstood. 
They spoke in the name of 181 towns, all of them 
represented by their municipal authorities; of forty 
general councils of departments, of ten chambers of 
commerce, and of one hundred thousand individual 
subscribers. Were they not right when they said, 
“The people of the United States will understand the 
feeling which has inspired this great manifestation’’? 
And we on our side can show that the popular pulse 
did respond; one single newspaper of New York en- 
listed upwards of seventy thousand subscribers to co- 
operate in the work. We, too, will soon have our one 
hundred thousand stockholders in this great enterprise 
which will pay its dividends, let us hope, for ages to 
come, to all who give this cause their sympathy. 

It may perhaps be suggested that the fact that 
France lavished her favors on the American people 
in the past does not explain her present action. Logic- 
ally—the objector may say—America should send 
bronze statues to France, not France to America. We 
never sent armed men to her aid when all Europe was 
banded against her. While her land was overrun, and 
German, Russian, English armies swept over her 
fields and towns, leaving a track of ruin behind them, 
only French blood was shed in her behalf. Our ships 
did not go down with French ships at Trafalgar—our 


treasure did not melt away in the fiery furnace of 
16 


242 France 


French tribulation and German triumph. If we are 
paying taxes to support our credit and diminish our 
debt, no part of that debt was incurred to save French 
interests or French territory. True—but he knows 
little of the hidden springs that control human action 
who does not know that there is no gratitude like that 
which is felt by the benefactor. It is far easier to 
forget the favors that we have received than those that 
we have conferred. That pattern of shrewd worldly 
wisdom, Benjamin Franklin, ingenuously tells us that 
when he wanted to secure the good will of influential 
men, he always sought to place himself under some 
slight obligation: he borrowed (and returned) a book, 
or asked some small service. The obligation incurred 
was never heavy enough to trouble him, but it always 
encouraged the other party to renewed bounty. The 
habit of generosity is apt to grow with exercise, and it 
is precisely because France was the friend and loyal 
ally of America upwards of a century ago, that she is 
now ready, and always has been, to testify the warmth 
and fidelity of her attachment. And if there ever has 
been at any time, on the face of our friendship, coldness 
or estrangement, or the appearance of it, such a change 
has never been exhibited by France. At all times, 
under all circumstances, whether we were prosperous 
or depressed, at peace or at war, her sentiments have 
never varied, and her citizens, even those most de- 
votedly attached to their own country, never deemed 
it heresy to that country if they knelt and wor- 
shipped at the shrine of American independence. 
Jealous as France has been of the undivided allegiance 
of her people, she has never prohibited this devotion 
to another divinity. In our civil war the popular 
sentiment was as true as the magnetic needle to the 


France 243 


north star, and men of royal blood did not hesitate to 
don American uniforms and risk their lives on battle- 
fields long familiar to their own citizens. We are now 
great enough in population and wealth and influence 
to fear no nation of the world, but tho’ we may have 
no further need of it, we may rest assured that the 
same sentiment is still deeply imbedded in the French 
heart. No evil can touch us that will not leave a scar 
in France. If she was ready to take upon herself such 
enormous burdens, to encounter such risks for an 
abstract cause, before one century’s friendship had 
cemented the two nations into unity of views and as- 
pirations on so many subjects, how must it be now? 
That the feeling has not grown cold and that the 
ancient nation has preserved the old tradition let this 
monument forever testify. 

But it is not only as a memento of common efforts 
ending in a common triumph that this monument is 
to stand. Even without this or any other palpable 
evidence to bring back the past, we have in history 
and in tradition monuments more enduring than 
brass. We must forget the birth of American inde- 
pendence, and strike out all the record of its cost in 
blood and treasure and hardship, before the memory 
of these things can fade away. Those were no light 
trials that could shake the soul of George Washington 
—those were no small perils that could make him 
doubt the final success of his and his country’s cause. 
If I were called upon to pick out from the mass of 
concurring testimony proof of the priceless value of 
French aid to the American colonies, I should go to 
that dark and dreary winter at Valley Forge, when 
even the stoutest hearts were despondent. All that 
makes victory possible was absent except courage and 


244 France 


faith, and they were fast failing before the cruel blows 
of adverse fortune. What must other men have 
thought of the future and its promises, when Wash- 
ington, from the midst of his shivering, half-clad, and 
half-fed followers, wrote this: ‘‘ Unless some great and 
capital change takes place the army must be inevitably 
reduced to one or other of three things,—starve, dis- 
solve, or disperse ’’? 

Only a miracle could save the cause! Who would 
help the struggling band of enthusiasts that had 
nothing to offer as a reward for the aid which they 
prayed for? Was it not against all history and ex- 
perience that the vanquished cause should so com- 
mend itself to the world that troops, and money, and 
friends, and sympathy from strangers—strangers in 
blood, in tastes, in language—should be provided as 
though a rich return were sure to follow? It all came, 
and, strangely enough, the prime mover in the battle 
against monarchy was a king, the volunteers in the 
people’s fight were nobles, the treasury that made 
success possible came from a well-nigh bankrupt 
state! If logic had had a voice in French councils, 
and French sentiment had not guided French action, 
Lafayette would have stayed at home, Louis XVI. 
would have closed his royal ear to these earnest ap- 
peals, French gold would have remained in French 
hands, and the galaxy of bright, brave, loyal, chival- 
rous marquises, dukes, and counts would never have 
fought, flirted, suffered, danced, and—died on Amer- 
ican soil. And what people other than they would 
_have ignored the common-sense view of the case? I 
have my misgivings that even now, when we look at 
it quietly, we are inclined to shake our heads with 
retrospective wisdom, and while admitting that once 


France 245 


in a while such things may be done, yet they are not 
to be repeated, and our people should be warned 
against so dangerous an example. Let each nation 
fight out its own destiny, and work out its own will. 
The path before us is clear: strict neutrality and our 
best wishes for the right. But France, to her great 
cost, has not, or had not then, been taught the lesson. 
The American colonies have not been alone to incur a 
debt to France, which no coin can repay, for it has 
always been her effort “to hitch her wagon to a star”! 
The world has profited, even if she has lost. 

I repeat, then, that there is something besides a 
memento in this. There is a lesson for all of us, one 
that may be read by the thousands who shall first set 
their eyes upon this our statue. It will typify the 
part which liberty, with wise limitations, is learning to 
play in the world. This torch, whose radiant light 
will glorify our bay, will represent the real light of 
liberty as it relieves mankind from the darkness of un- 
controlled authority. Liberty is to the political world 
as the sunshine and the air are to the sickroom, the 
hospital, the abodes of physical and moral wretched- 
ness and misery. How many problems in the hygiene 
of politics as of science, light and liberty will solve! 
Let the light in upon all subjects, upon and into the 
nooks, and corners, and byways of the world. The 
scourge and the executioner are but poor guides and 
poor physicians for the great and suffering masses. 
Let the light of a free press and free speech pour its 
radiance into the dark recesses never reached by such 
agencies before. Teach men before you punish them 
—enlighten them as to their duties while you point 
out their rights—show the world, as we are trying to 
do, that the only panacea for the ills that human 


246 France 


society has been groaning under and fighting against 
during all these centuries is Liberty—Liberty, the 
friend of morality, of virtue, of truth, of honor, of 
learning—Liberty, the foe of oppression, of violence, 
of murder, of cowardice—Liberty, which takes nothing 
from man and gives him all, evena remedy for the ills 
which a constantly changing and restless society will 
ever generate. This let us all hope. And if our great 
statue will preach this lesson for ages to come in our 
own peerless bay, we will bless it and love it for the 
givers’ sake and for its own! 





MORALS AND SOCIAL PROBLEMS 


247 








XIII 


LE DIVORCE 


REPONSE A M. DUMAS. 


“Quelques auteurs traitent la morale comme on traite la 
nouvelle architecture, ot l’on cherche avant toutes choses la 
commodité.’’—VAUVENARGUES 


ALEXANDRE DUMAS FILS. 
Monsieur: 
OUS étes un homme de beaucoup d’esprit. 
Pardonnez-moi cette fagon un peu brusque 
de vous présenter l’encensoir, mais je suis 
pressé, car j’ai beaucoup de choses @ vous dire. Si je 
parlais de M. Dumas fils & tout autre qu’a vous méme, 
Vobservation que je fais en débutant, serait fort 
inutile, sinon ridicule. Mon interlocuteur, pourvu 
qu'il sit lire, hausserait les épaules et me demanderait 
si je me moque de lui. Vous étes donc le seul auquel 
je puisse m’adresser de la sorte, parcequ’il est possible 
que vous soyez ignorant du fait, patent pour le reste 
du monde, que vous étes doué de beaucoup d’esprit. 
Je soupconne bien que le Diable dont vous vous vantez 
de posséder l’amitié, a dQ vous dire cela et d’autres 
choses encore, mais peut-étre ne l’avez vous pas cru. 
Dans ce cas, soyez complétement rassuré; personne 
ne doute que vous ne soyez un des hommes les plus 
spirituels de la France, et par suite, de l’univers. 
249 


250 Le Divorce 


Si je vous parlais d’un autre que de vous méme, 
vous me demanderiez sans doute ot je puise mon 
autorité et qui m’a fait juge en pareille matiére. Mais 
vous ne me ferez pas cette question, car je parle de 
vous, et l’homme, pour son esprit, est un peu comme 
la femme pour sa beauté. La louange n’a pas besoin 
de piéces a l’appui; le jugement de P§4ris n’a pas 
besoin de considérants. 


Je viens de lire votre livre sur le divorce. Je ne 
prétendrai pas qu’en entreprenant la lecture de cet 
ouvrage, j’aie été attiré par le titre, ni que le sujet 
possédat pour moi un attrait particulier; c’est sim- 
plement parceque ces pages étaient signées de vous et 
que depuis bien des années j’ai contracté lhabitude 
de vous lire. Je ne m’en fais pas gloire, tant s’en faut, 
et vos francs aveux de la part qu’a eu le Diable dans 
la production de vos ceuvres me fait soupgonner que 
j’aurais peut-étre mieux employé mon temps a autre 
chose. Mais vous avez une fagon a vous d’éblouir les 
gens et quand votre ‘‘ Diable’’ parait en scéne, ce qui 
par parenthése n’est pas rare, il est mis avec tant de 
gotit, il est si joli gargon, si parfumé, il s’exprime avec 
tant d’élégance, que l’on ne voit plus ses doigts crochus 
ni ses pieds fourchus; l’odeur de soufre que tout 
diable qui se respecte doit exhaler, est déguisée d’une 
facon dont vous possédez seul le secret. Pourquoi 
donc étes-vous venu avec une franchise quelque peu 
brutale, nous ravir nos illusions, en nous le montrant 
sans ce joli appareil qui lui seyait si bien? 


Vous ‘avez donc écrit un livre sur le divorce. Je 
lai lu d’un bout & l’autre et je me suis demandé, je 
me demande encore pourquoi vous vous étes lancé 
dans cette singuliere aventure. 


Le Divorce 251 


Il m’est venu a la mémoire, aprés lecture de votre 
nouvel ouvrage, une vieille histoire: Le révérend 
Sydney Smith, l’homme le plus spirituel d’Angleterre, 
excepté Macaulay, et M. Macaulay l’homme le plus 
spirituel d’Angleterre, excepté le révérend Sydney 
Smith, se trouvaient ensemble chez un lord de leurs 
amis ou ils passérent huit jours, durant lesquels M. 
Macaulay ne tarit pas un instant. Sa verve inépuis- 
able coulait a flots si pressés et si rapides que, sauf les 
rares instants ow il s’arrétait pour cracher ou pour 
tousser, le révérend dut se borner au réle ingrat de 
simple écouteur. M. Macaulay, sa visite finie, était 
déja en voiture pour partir, lorsque le ministre s’élance 
a la portiére lui criant a tue-téte: “Je l’admets, je 


ladmets.”” Quoi donc, qu’admettez vous? “ Mais, 
que vous parlez mieux qu’aucun homme en Angle- 
terre.’’ Il ne nous fallait pas, monsieur, votre nou- 


velle brochure, pour nous convaincre de votre talent 
et nous étions préts & vous crier, chacun et tous en 
choeur: ‘Je l’admets.”’ 

Peut étre aussi avez-vous voulu nous prouver que 
vous avez lu la Bible; car quelques uns de vos anciens 
lecteurs ont pu croire que l’étude des Saints-Evangiles 
n’a pas figuré pour une forte part dans votre éduca- 
tion. 

Peut-étre dormiez vous avec un discours de M. 
Ferry ou de M. Naquet sous Voreiller, et, contraire- 
ment a l’effet généralement produit en pareil cas, 
l’éloquence de ces messieurs vous ravissait le sommeil. 
Enfin, quelque soit le motif, vous avez voulu rompre 
une lance contre la vieille Eglise, et prouver qu’elle 
n’entendait rien au métier qu’elle pratique depuis tant 
de siécles. Vous devez étre content; c’est vous main- 
tenant qui attirez les regards de la foule—les autres 


252 Le Divorce 


acteurs n’ont plus qu’a sauvegarder la dignité de leur 
silence. 

Comme théologien, Monsieur, permettez-moi sans 
offense de vous le dire, vous réussissez médiocrement ; 
c’est du reste, je m’empresse d’ajouter, un titre rare- 
ment mérité que celui de théologien. Ce grand et 
éminent prélat, le Cardinal Newman, a dit récem- 
ment qu'il n’y avait au monde qu’un ou deux véri- 
tables théologiens, dignes de ce nom. La vérité me 
force d’ajouter que votre livre n’avait pas alors paru, 
mais, etit-il vu le jour a cette époque, Monseigneur 
Newman n’aurait pas modifié son avis, et vous aurez 
beau citer la Bible et jeter a l’Eglise toutes les turpi- 
tudes que vous avez pu trouver dans les brochures du 
jour, vous ne passerez jamais pour Saint Thomas 
d’Aquin. Il faut des études bien autres que les 
votres, pour éclairer, Monsieur, l’obscurité du tombeau 
et pour montrer a l’-homme la voie qu’il doit suivre 
pour arriver au but final. Il] ne suffit pas d’avoir em- 
belli le théatre des plus charmantes immoralités, pour 
oser précher sur des textes qui ont divisé les hommes 
depuis des siécles. L’on peut avoir écrit ‘La Dame 
aux Camélias”’ sans connaitre pour cela les secrets que 
Dieu a placés sous sa parole divine et, peut-étre méme, 
avoir un diable pour guide et ne pas en savoir autant 
qu’un moutard de dix ans qui a étudié son catéchisme. 
Non, Monsieur, croyez-moi, vous n’étes pas plus théo- 
logien que—que moi! et le bonnet de docteur dont 
vous vous affublez, sans rime ni raison, cache seulement 
les jolies couronnes de fleurs que vous ont tressées les 
doigts roses de vos héroines—héroines séduisantes, 
quoique bien légéres! 

Il est vrai que vous étes moraliste, du moins je me 
le suis laissé dire. Entre la morale et la théologie il 


Le Divorce 253 


ne doit y avoir qu’un pas, mais ce pas est bien difficile 
afranchir! St. Denis a pu perdre la téte et cependant 
faire le premier pas dont la difficulté est devenue 
proverbiale; mais si vous perdiez la téte—au figuré 
je Ventends bien—vous ne réussiriez peut-étre pas 
comme lui. Je vous accorde le titre de moraliste sans 
difficulté. Au surplus, je ne sais trop ce que cela veut 
dire aujourd’hui. Autrefois ce mot impliquait quelque 
chose de grave, de studieux, de pensif. L’on entre- 
voyait l’ombre de Pascal, de Montaigne, de La Bruyére 
—mais, de nos jours, nous n’aimons pas a évoquer les 
spectres d’un ordre sérieux. Le moraliste contem- 
porain a peu de choses en commun avec ceux qui 
portaient autrefois ce nom. Il peut mériter ce titre 
pour avoir examiné de prés le vice moderne, pour avoir 
réhabilité l’immoralité, et pour avoir porté le paradoxe 
au dernier point de 1’élégance littéraire. Je ne sais si 
vous étes moraliste pour avoir découvert la ‘‘ Dame aux 
Camélias,’’ ou pour avoir permis au mari outragé de 
tuer sa femme infidéle. Mais enfin, vous en avez le 
titre et vous avez peut-étre voulu prouver que vous 
y aviez droit. Vous avez réussi; ainsi n’en parlons 
plus. 

Comme je ne posséde pas le moindre fonds de science 
théologique et que vous avez dti épuiser le livre de M. 
le Docteur Drouet, je n’entrerai pas dans une discus- 
sion qui n’aboutirait qu’a démontrer mon ignorance— 
ignorance que j’admets de la meilleure foi du monde— 
mais la question ne me semble pas appartenir a cet 
ordre d’idées, au moins exclusivement, et je me propose 
de chercher si, dans vos arguments principaux, vous 
n’étes pas tombé dans quelques erreurs qu’il peut 
étre utile de relever. 

Vous étes trop sagace pour avoir pensé que les 


254 Le Divorce 


catholiques allaient devenir partisans du divorce pour 
avoir lu votre livre. Vous savez comme moi que sur 
ces questions ils acceptent sans réserve l’enseignement 
de l’Eglise et quils ne canoniseront pas M. Naquet, 
méme si vous leur prouvez que Charlemagne s’est 
marié aussi souvent qu’Henri VIII. Ils vous ré- 
pondraient que c’est fort possible: ils admettraient 
méme que l’on a pu dissoudre des mariages au Moyen 
Age avec une facilité qui peut paraitre extréme quand 
vous nous la signalez. Mais ils vous diront aussi que 
cette méme ardeur & rechercher des causes de nullité 
démontre surabondamment le principe d’indissolu- 
bilité. En effet, si le divorce était chose si simple, 
pourquoi ne pas l’accorder a priori, sans chercher des 
prétextes futiles; pourquoi ne pas permettre a Henri 
VIII. de quitter Catherine pour Anne et, prenant ce 
monarque susceptible par le cété faible—sinon par le 
bon c6té—pourquoi ne pas avoir conservé la vieille 
Angleterre dans le giron de |’Eglise? Certes le peuple 
anglais ne demandait pas mieux que de garder la 
tradition de ses péres: il ne se doutait pas qu’il 
gagnerait en moralité parce qu’il aurait Henri VIIL., 
Elizabeth, George IV., ou Victoria pour pape au lieu 
de Clément VII., Sixte Quint, Pie IX., ou Léon XIII. 

Vos citations bibliques, monsieur, sont trés intér- 
essantes. Vous les faites surtout avec une certaine 
candeur qui est presque touchante. Vous ¢tes un peu 
sous ce rapport, comme Madame de Stael qui, lors- 
qu’elle parlait de vertu, semblait croire qu’elle avait 
fait une découverte. C’est au moins ce que disait 
Napoléon. 

L’histoire d’Abraham, de Sara, de Rachel, de Lea, 
mais, tout cela, c’est trés connu—non pas parmi les 
enfants catholiques—j’admets que les parents ne tien- 


Le Divorce 255 


nent pas a les moraliser par la lecture de ces exemples 
de moeurs patriarcales; mais vous n’avez pas écrit pour 
les enfants catholiques. Pour les protestants, vous ne 
leur enseignez pas grand chose sur la Bible, puisque 
c’est la base de leur édifice religieux. Je crois méme 
qu ils vous sauraient assez mauvais gré de traiter si 
légérement le livre qu’ils vénérent 4 si juste titre. 
Si c’est pour éclairer M. l’abbé Vidieu, je n’ai rien a 
dire, mais je ne pense pas qu’1l ait oublié ces histoires 
bibliques lorsqu’il a parlé de la sainteté du mariage. 
Au reste, c’est la une affaire entre vous et lui, dont je 
n’ai pas la prétention de me méler. 

Mais laissant la Abraham et Jacob, revenons a une 
époque plus rapprochée. Cette époque nous importe 
quelque peu, puisque c’est principalement de 1’Eglise 
Catholique qu'il s’agit, et voyons ce que vous avez a 
dire sur les usages anciens de la France. 

Il est certain que, du temps de vos premiers rois, 
lon enjambait assez lestement les barriéres de la 
morale. La royauté en France n’a pas été plus re- 
marquable pour la pureté de ses mcoeurs que chez les 
autres nations de l'Europe. Le pouvoir absolu n’a 
pas une tendance bien moralisatrice, et si vous ajoutez 
a cela l’influence des mceurs rudes, cruelles, brutales— 
vous ne devez pas €tre surpris de trouver que vos 
premiers souverains n’étaient pas précisément des 
modeles de chasteté, ni méme de les voir se marier et 
remarier sans prendre le temps ou la précaution de 
décapiter les épouses génantes, comme faisait le pere de 
la Réforme anglaise, et (suivant vous) lauteur du 
systeme du divorce en Angleterre. Je soupconne 
quils prenaient leurs femmes un peu comme le chateau 
qui leur plaisait, parcequ’ils s’appelaient “Lion.” Ts 
ne devaient pas étre forts sur la loi canonique, ni sur 


256 Le Divorce 


le droit romain, ni sur bien des choses que vous devez 
connaitre a fond. Mais a cette époque—il faut vous 
le rappeler—M. Ferry n’était pas ministre de l'in- 
struction publique. 

Enfin, il leur est arrivé de changer de femmes, sans 
beaucoup de phrases, et de ne pas attacher aux céré- 
monies du mariage une valeur exagérée—c’est avéré. 
Mais, lorsque vous nous dites que Childéric, Caribert, 
Audovert, Bazine et Charlemagne ont commis ces in- 
fractions aux lois de l’Eglise et que vous induisez de 
la que l’Eglise autorisait ces mutations matrimoniales, 
vous m’étonnez. 


Je cherche autour de moi, et je trouve Monsieur 
Merlin, dont je trouble assez rarement le sommeil— 
mais qui cette fois invite mon attention. Il avait 
entendu parler de ces rois volages et de leurs méthodes 
irréguliéres—il savait aussi quelque chose sur la loi de 
l’Eglise qui, de fait, entrait dans le domaine de la juris- 
prudence frangaise. 


Dans les premiers siécles de la monarchie frangaise 
[dit-il] le divorce a été admis parmi nous; on en trouve 
plusieurs exemples sous nos rois de la premiére et de la 
seconde races: l’histoire nous apprend en effet que Bizine 
ou Bazine quitta le roi de Thuringe pour suivre Childéric, 
qui l’épousa. Cherebert, roi de Paris, répudia sa femme 
légitime. Audovert, premiére femme légitime de Childéric, 
roi de Soissons, fut chassée, parce qu’elle avait tenu son 
propre enfant sur les fonts du baptéme. Charlemagne 
répudia sa premiére femme, parce qu’elle n’était pas 
chrétienne. 

On trouve aussi dans le droit canon le terme, Divorce, 
mais il n’y est employé que pour exprimer la séparation 
de corps et de biens qui n’emporte point la dissolution du 
mariage: Car jamais l’Eglise n’a approuvé le divorce pro- 


Le Divorce 257 


prement dit; elle l’a toujours regardé comme contraire au 
précepte ‘‘Quod Deus conjunxit, homo non separet.”’ 

C’est donc une maxime constante parmi nous que le mariage 
ne peut étre dissous par la vore du divorce; cependant on 
peut attaquer un mariage de nullité par la voie d’appel comme 
d’abus; mais dans ce cas, le mariage n’est point dissous; on 
déclare seulement qu'il n’y en a point eu de valablement 
contracté. 


Ces quelques lignes de Merlin me semblent bien 
claires. Il affirme trés positivement ce dont vous 
doutez et n’est nullement embarrassé de distinguer 
entre un divorce “‘ proprement dit’”’ et une séparation. 
Notez aussi qu'il était parfaitement au courant des 
irrégularités domestiques de Charlemagne, Childéric et 
autres—mais malgré cela il vous donne la maxime con- 
stante basée sur le principe que lhomme ne doit pas 
désunir ce que Dieu a uni. 

Si cela ne vous ennuie pas trop, voyez maintenant ce 
que dit Pothier. C’est un auteur fort estimé, comme 
vous le saurez si vous voulez vous renseigner sur son 
compte. Il ne se géne pas non plus pour dire leur fait 
aux théologiens qui voudraient empiéter sur les droits 
de l’Etat. 

‘““Quotique le divorce soit condamné par l’Evangile, les 
empereurs chrétiens, par des raisons d’état politiques, 
ne l’avaient pas aboli, et ils s’étaient bornés a en 
restreindre la liberté.’”’ Il cite a l’appui de son dire 
une foule de textes, fort intéressants sans doute, mais 
que ni vous ni moi ne nous soucions de vérifier. I] 
poursuit: 


Quoique le divorce ffit permis alors par les lois séculiéres 
et qu’en conséquence, aprés un divorce célébré dans la 
forme légale, chacune des parties pfit, dans le for exté- 


rieur, passer, du vivant de l’autre, &4 un autre mariage, 
17 


258 Le Divorce 


néanmoins /’Eglise regardait le divorce comme défendu par 
lEvangile et comme incapable de rompre le lien du mariage; 
en conséquence, elle regardait comme un adultére, plutdt 
que comme un mariage, celui que l’une des parties contrac- 
tait, aprés le divorce, du vivant de son conjoint, avec une 
autre personne: et quoiqu’il fat réputé valable dans le for 
extérieur, elle retranchait de la communion les parties qui 
l’avaient contracté, jusqu’a ce qu’elles se séparassent, et 
elle les soumettait & la pénitence 4 laquelle étaient assu- 
jettis par les canons les adultéres. 


L’auteur cite St. Ambroise sur Saint Luc, Lib. 8, No. 
5, puis encore le pape Innocent I., dans la lettre dé- 
crétale 4 Exupére, etc. Puis il ajoute en forme de con- 
clusion: ‘‘Remarquez que, quoique ces mariages fussent 
alors permis par la loi civile et dans le for extérieur, le 
pape veut que ceux qui les contractent soient retranchés 
de la communion des fideles.” 

Cette distinction entre le for extérieur et le for in- 
térieur vous semble peut-étre subtile, et si vous vous 
occupiez des lois sur l’enseignement supérieur vous 
l’attribueriez sans doute aux machinations des Jésu- 
ites. Mais il n’en est rien. Cette subtilité apparente 
découle de la nature méme du mariage. 

Il y a 1a en effet une particularité qu’il convient de 
noter pour éviter certaines confusions dans lesquelles 
il me semble que vous étes tombé. 

Le mariage différe de tous les autres contrats, en ce 
qu'il est tout a la fois un contrat civil et un sacrement. 
Je me sers du présent quand je devrais peutétre me 
servir du passé; mais comme le double caractére 
existe toujours pour les catholiques et bon nombre 
de protestants, nous pourrons en parler sans nous 
préoccuper de la simplification que va introduire la loi 
Naquet dans les affaires de ce genre. Or, comme con- 


Le Divorce 259 


trat civil, il appartient a l’Etat de le définir, de l’en- 
tourer de sauvegardes utiles et d’en régler les effets. 
En tant que sacrement, c’est a l’Eglise de régler les 
conditions auxquelles elle voudra s’associer a 1’Etat 
pour donner au mariage ce double caractére civil et 
religieux. Par suite, lorsque vous trouvez dans 
V’histoire certaines restrictions attachées au contrat, 
aussi bien que certaines facilités qui permettent d’en 
neutraliser ou d’en éviter les résultats ordinaires, il 
faut d’abord voir si c’est ? Etat qui agit ou l’Eglise— 
autrement vous risquerez bien d’attribuer a César ce 
qui appartient a Dieu et réciproquement. Votre Diable 
pourrait bien gagner a cette facon de traiter le sujet, 
mais la vérité pourrait en souffrir. Aussi, c’est a la 
loi civile qu’il faut vous en prendre si vous trouvez 
mal que les mariages d’enfants de famille aient été 
déclarés nuls, lorsqu’ils étaient contractés sans le 
consentement de celui sous la puissance duquel ils 
étaient. C’est l’empereur Théodose qui a défendu, a 
peine de nullité, le mariage entre cousins germains, qui 
était permis avant cette loi. C’est Justinien qui a fait 
de l’alliance spirituelle un empéchement dirimant de 
mariage. Celui de la disparité des cultes a été établi 
par les empereurs Valentinian, Valens, Théodose et 
Arcade, qui ont prohibé les mariages entre chrétiens et 
juifs. “‘L’Eglise,’’ ajoute encore Pothier, ‘‘n’a jamats 
regardé ces lots des empereurs sur les mariages, comme 
des entreprises de la puissance séculiére sur la puissance 
ecclésiastique; bien loin de la, nous avons plusieurs 
canons de concile qui en recommandent Ll’ observation et 
quit prononcent des censures contre ceux qui ne les ob- 
servent pas.’ Et puis il cite force théologiens pour 
appuyer son opinion. 

Il est donc évident que l Etat et l’Eglise ont eu chacun 


260 Le Divorce 


leur part dans cette question et que l’Eglise, tout en in- 
sistant sur la qualité sacramentelle du mariage, n’a pas 
cru devoir s’opposer aux prohibitions que le pouvoir 
séculier, agissant par des motifs d’ordre public, avait 
cru devoir prononcer. Mais lorsqu’il s’est agi de 
dissoudre le contrat une fois fait, et une fois la sanction 
religieuse donnée a cet acte, l’accord a cessé d’exister. 
Les lois civiles étant devenues trés relachées au sujet 
du mariage, l’Eglise s’est interposée pour protéger la 
sainteté d’un sacrement aussi important. Les Péres 
ont reconnu 1’élément sacramentel dans les premiers 
ages de l’Eglise: elle a imposé des censures ecclési- 
astiques aux chrétiens qui désobéissaient a ses injonc- 
tions—mais elle ne possédait pas le pouvoir civil 
nécessaire pour rendre ces foudres effectives. Plus 
tard elle a pu se faire attribuer la juridiction exclusive 
dans les causes ecclésiastiques et depuis le huiti¢me 
siécle, la doctrine sacramentelle du mariage a été mise 
en vigueur: cela n’a pas cessé jusqu’au Concile de 
Trente qui a mis le sceau de ses décrets sur la loi 
antérieure. 

Tout cela semble si simple, si clair, je pourrais dire 
tellement démontré, que je me demande comment vous 
avez pu vous y tromper. Quel dommage, Monsieur, 
que tout en lisant la pétition du Dr. Drouet qui vous a 
tant aidé a écrire votre livre, vous n’ayez pas regardé 
ce que disaient Merlin, Pothier et tant d’autres qui 
en savaient autant, je pense, que ce médecin péti- 
tionnaire—homme de science, sans doute et que, ne 
connaissant nullement, je respecte parfaitement. I 
est vrai que si vous aviez feuilleté ces livres poudreux 
vous n’auriez peut-étre pas écrit ces charmantes pages, 
car vous n’étes pas de ceux, je pense, qui crient ‘‘ Tant 
pis pour les faits’’ lorsque les faits sont contre eux. 


Le Divorce 261 


Mais passons de la France a d’autres pays, a celui, si 
vous le voulez, de votre prédilection. Je ne parle pas 
de l’Allemagne, mais de 1’Angleterre, et comme il ne 
s’agit pas ici d’histoire de France, que vous devez con- 
naitre bien mieux que moi, je me permettrai de vous 
signaler quelques erreurs capitales, si graves que vous 
allez bien en vouloir & ce bon Docteur, si c’est lui qui 
vous a renseigné, ou & votre Diable si c’est lui qui vous 
a inspiré. 

D’aprés vous, Monsieur, les pays moraux et heureux 
sont ceux ow existe le divorce, et comme c’est a la 
Réforme qu’est dfi ce bienfait inestimable, les pays 
réformés valent bien mieux que les pays catholiques. 
Ergo l’Angleterre est plus morale que la France. ile 
yous avouerai, Monsieur, sans vouloir vous offenser, qu’a 
votre place je me serais gardé de parler ainsi de mon 
pays, méme ce ffit-il vrai. Je crois que la patrie, c'est 
un peu comme la mére qui nous a nourris; elle peut 
avoir commis des fautes, mais le fils qui l’insulte n’en 
est pas plus généreux et plus brave pour cela. Mais 
c’est 1a une affaire de gotit et je n’ai certes pas la 
prétention de rien vous enseigner sur des questions 
semblables. Je crois toutefois qu’en vous relisant, 
vous regretterez d’avoir écrit que chez les Anglais, les 
Allemands et les Suisses, la famille est plus nombreuse, 
plus morale, plus unie, et plus respectée que chez vous. 

Je crois méme que vous nous faites l’honneur, a nous 
Américains, de nous comprendre parmi vos supérieurs 
dans toutes ces belles qualités, mais comme vous dites 
en méme temps que les Etats-Unis contiennent déja 85 
millions d’habitants, je ne suis pas aussi flatté que je 
voudrais l’étre de cette concession importante. Le 
dernier recensement ne nous a donné qu’une quaran- 
taine de millions, y compris les Indiens, non taxés; 


262 Le Divorce 


vous nous faites donc croitre et multiplier avec une 
rapidité qui ne peut-étre expliquée que par les effets 
merveilleux du divorce. Que dirait Malthus d’un 
systéme qui viendrait tout d’un coup augmenter les 
populations d’une facon tellement vertigineuse? [1 ne 
serait certes pas partisan de M. Naquet, méme s’1il ne 
comprenait pas trop pourquoi la séparation des €poux 
dat entrainer des effets tellement contraires a la 
logique. Mais enfin, c’est la un petit détail de 30 a 4o 
millions, et comme vous assignez aux Etats-Unis place 
pour un milliard d’habitants, ce léger surcroit ne 
compte guere. 

Mais revenons & 1|’Angleterre. Vous nous faites, 
Monsieur, une charmante photographie d’une famille 
anglaise de vos amies, le mari septuagénaire, pere 
d’une quinzaine de beaux enfants, la mere douce et 
bonne, méme pour les enfants de son prédécesseur, les 
fils et les filles unis, aimants et obéissants—enfin le 
paradis domestique dont les protestants ont seul le 
privilége—en attendant la loi Naquet. Tout ce bon- 
heur, pour vous, vient clairement de la loi du divorce 
qui régit ces époux si unis, et il est avéré pour vous 
que s’ils ne savaient clairement que cette union n’est 
pas indissoluble, tout ce bonheur s’effondrerait; ces 
insulaires seraient alors réduits a l’état de Frangais. 
Comme vous devez étre bien emporté par l’ardeur de 
votre travail, Monsieur, pour n’avoir pas senti quelle 
injure vous faisiez & vos amis, en supposant que l’idée 
d’un divorce ait jamais pu effleurer leur imagination! 
Pensez-vous sérieusement que cette honnéte femme, 
en donnant sa main & cet honnéte homme devant 
l’autel—car je gagerais que ce n’est pas le mariage civil 
qui les a unis—songeait déja a sortir de l’union qu’elle 
contractait et préparait ses engins de sauvetage? 


Le Divorce 263 


Croyez-vous que la pensée d’un adultére possible, d’un 
divorce, d’une séparation légale, d’un nouveau mariage 
aient terni la pureté de leur affection? Non, Monsieur, 
il n’en est rien: et si vous demandiez a cette digne 
épouse et mére si la loi du divorce entre pour quelque 
chose dans son bonheur, que ferait-elle? Il est prob- 
able qu’elle appellerait son mari pour vous expulser de 
chez elle. Mais si, prenant votre qualité de moraliste 
francais en considération, elle daignait vous répondre, 
vous verriez quelle injustice vous lui faites. Elle vous 
dirait qu’elle s’est donnée sans réserve et sans arriére 
pensée, qu’elle avait foi en l’honneur de cet homme, 
et si la pensée douloureuse d’une séparation a été 
entrevue par elle, ce n’était que la séparation tem- 
poraire de la mort—car la mort méme ne pourrait la 
divorcer que pour un temps de homme que Dieu lui 
avait donné pour mari. Et si vous lui aviez dit que le 
divorce pour elle était ‘une bouée de sauvetage ou une 
pompe a incendie,’”” comme vous le dites si gentiment 
dans votre livre, je crois, pardonnez-moi, Monsieur, 
qu'elle vous aurait ri au nez. 

Quant au mari, si vous le consultiez et qu’il respectat 
toujours votre qualité de moraliste frangais, si vous lui 
disiez gravement, comme vous nous le dites a nous, 
que Henri VIII. avait introduit le divorce en Angle- 
terre, en méme temps que la Réforme et que vous at- 
tribuiez la supériorité de 1’Anglais sur le Frangais a 
cette heureuse transformation des lois, je crois, son 
étonnement passé et le temps ne lui manquant pas, 
qu’il vous donnerait quelques explications que je suis 
tenté de vous donner ici. 

En effet, Monsieur, si vous croyez sincéerement que 
ce monarque amoureux a doté sa patrie de la législation 
qui empéche M. Naquet de jouir du sommeil, si vous 


264 Le Divorce 


vous imaginez qu'il y a depuis cette époque des juges 
et des tribunaux pour recevoir les époux malheureux 
et leur octroyer le droit de convoler en de nouvelles 
noces, Si vous pensez que, méme en ce moment, votre 
matrone anglaise trouverait un juge pour la débar- 
rasser de son époux, ffit-il coupable de trahison, vous 
vous trompez bien, et je pourrais vous retorquer ce que 
vous dites a Monsieur l’abbé, avec au moins autant de 
raison: ‘‘Ou vous savez, Monsieur—et je recule devant 
cette hypothése, ne ffit-ce que par politesse—ou vous 
savez, dis-je, qu’il n’y a pas un mot de vrai dans ce que 
vous avancez la, et alors, comment l’avancez vous? ou 
vous croyez dire la vérité, et alors comment étes vous 
si mal renseigné?’’ Voyons ce qu’il en est de ces 
affirmations si hardies. 

Le roi Henri était, comme vous l’avez entendu dire, 
un catholique ardent. Il passerait de nos jours pour 
un clérical de l’espéce la plus dangereuse. Lorsque 
Luther, le grand Luther, commenga sa campagne anti- 
papale, il n’eut pas d’ennemi plus convaincu que ce 
roi dévot. Sa main royale ne dédaigna pas de prendre 
une plume pour réfuter les erreurs dangereuses du 
moine hérétique, et ce livre qui n’est certainement pas 
écrit d’un style aussi brillant que le vétre, lui valut le 
titre de Défenseur de la Foi, que lui conféra le Pape. 
Ce titre lui sembla si honorable, qu’il s’en affubla 
d’office et le transmit sans scrupule a ses héritiers. 
Mais ne voila-t-il pas qu’aprés une quinzaine d’années 
de mariage, des scrupules de conscience lui vinrent, et 
le firent douter de la validité de son mariage avec 
Catherine, sa bonne et fidéle épouse. II est possible 
que ces scrupules se fussent dissipés a l’aide de la 
priere, de la mortification et des conseils de son di- 
recteur—mais ne voila-t-il pas, coincidence facheuse, 


Le Divorce 265 


méme diabolique, que la sémillante Anne vient, de ses 
beaux yeux, aggraver les doutes pénibles qui tour- 
mentaient la conscience délicate du monarque. Et la 
jolie Anne n’entendait pas la plaisanterie—elle voulait 
étre courtisée pour le bon motif ou pas du tout. Enfin 
vous connaissez la catastrophe. Le Saint Pere refusa 
d’annuler le mariage et de reconnaitre la valeur de ces 
scrupules royaux. D’autres, plus complaisants, lui 
vinrent en aide; nombre de théologiens déclarérent le 
mariage avec Catherine nul, et le grand scandale du 
siécle fut consommé. Jusque 1a il n’y avait pas de 
divorce dans ce que Merlin appelle le sens propre du 
mot, mais cette dissolution qui a si souvent eu lieu 
pour cause de parenté ou autre, et qui parait tant 
choquer vos sentiments quand vous la trouvez dans 
Vhistoire catholique. 

Mais le régne de la belle Anne ne fut pas long. Je 
crois bien qu’elle n’avait pas conservé sa vertu avec 
beaucoup de soin avant le mariage; il est probable 
qu’Henri ne trouva pas sans raison que sa conduite, 
comme épouse, laissait beaucoup a désirer. Mais il 
n’était pas aussi difficile de se débarrasser de la jeune 
femme que de Catherine, parente d’un monarque aussi 
puissant que Charles V. Aussi Henri s’empressa de la 
faire décapiter d’une facgon trés sommaire; mais pas Si 
vite qu’il n’efit eu le temps de faire déclarer le mariage 
nul. Vous avouerez que c’était manquer de logique. 
Si elle n’était pas la femme légitime du roi, elle n’avait 
pas commis de crime, et l’on ne devait pas lui couper la 
téte; si le mariage était valable la sentence de dis- 
solution était injuste. Mais les rois ne se targuent pas 
de logique; c’est tout au plus bon pour vous et moi et 
encore ne réussissons nous pas toujours a montrer que 
nous possédons cette qualité utile dans la discussion. 


266 Le Divorce 


La téte d’Anne n’était pas encore tombée, que ce 
monarque, dont l’amour de la vie domestique se mani- 
festait d’une facgon si touchante, avait trouvé une 
autre épouse, et, tout de blanc habillé, Henri lalla 
chercher le jour méme. Celle la, Jane Seymour, eut le 
bonheur de mourir dans son lit. Jusque la nous avons 
une séparation, un divorce par le bourreau et un 
troisiéme par la main de Dieu—mais jusqu’a présent la 
loi Naquet ne parait pas sur la scéne. 

Maintenant arrive la pauvre princesse allemande, 
Anne de Cléves qui avait eu le bonheur de plaire au roi, 
en peinture. Malheureusement le roi, fort connaisseur 
en beauté féminine, ne trouva pas sa nouvelle épouse a 
son gré. I] fallait donc s’en débarrasser. Mais elle 
n’avait pas été fiancée de son frére comme Catherine, 
il ne pouvait la décapiter, comme Anne, et l’ardeur de 
sa vocation maritale ne lui permettait pas d’attendre 
que la Providence voulfit bien trancher les jours de sa 
nouvelle épouse. Et puis, ces Allemandes ont la vie 
si dure. Il fallait donc un nouveau moyen; car il ne 
s’agissait pas de dire tout simplement que les charmes 
de la pauvre Anne étaient insuffisants. Ce moyen 
n’était pas difficile a trouver. Henri s’étant octroyé 
la qualité de pape, avait son clergé a lui: la dissolution 
fut bien vite prononcée, et cela avec un renfort de 
théologiens qui aurait df suffire a divorcer une dou- 
zaine de rois. Il y avait la deux archevéques, dix 
sept évéques et cent-trente ministres qui s’empres- 
sérent de déclarer ce mariage parfaitement nul et non 
avenu: Le roi avait eu la main forcée (comme votre 
cuirassier); l’on avait faussement prétendu toutes 
sortes de choses, l’induisant par la en erreur; enfin il 
n’y avait pas eu de consommation. ‘Tout cela comme 
sous l’ancien systéme, n’est ce pas? Et puis 1’Eglise, 


Le Divorce 267 


car ces Messieurs s’intitulaient bel et bien 1’Eglise, 
déclara gravement que le roi Henri et la reine ou 
princesse Anne étaient parfaitement libres de se jeter 
dans de nouvelles aventures matrimoniales. M. Froude, 
que l’on appelle, par courtoisie, historien, nous assure 
que cette sentence était parfaitement légale. Henri, 
du haut du ciel, sa demeure derniére, doit étre content 
de cette approbation posthume. Vous comprenez 
que, devant cette facilité dans les procédés, que lui 
offrait son nouveau systéme, Henri ne s’arréta pas la. 
Et puis, le Parlement le supplia de prendre une cinqui- 
éme femme, pour le bien de son royaume, sacrifice 
auquel Henri se résigna avec une promptitude qui 
témoigne hautement en faveur de son amour pour ses 
sujets. Il choisit cette fois Catherine Howard, jeune 
et jolie personne de bonne famille, et qui par son 
éducation, lui promettait les satisfactions intimes 
auxquelles aspirait son coeur. Mais il fut bien mal- 
heureux cette fois. Au bout d’un an de mariage, la 
nouvelle reine fut accusée d’un gros crime et faut 
il ajouter, les apparences furent contre elle. Je dis 
les apparences, parce que le prince dont nous parlons 
avait introduit une nouvelle méthode de procédure 
qui consistait & faire condamner l’accusé sans procés 
préalable. Il s’adressait au Parlement, le Parlement 
passait une loi ad hoc, et c’était fait. Cela simplifiait 
singuliérement les choses, et le roi, qui était assez peu 
disposé a la patience, n’avait pas a attendre que les 
formes ennuyeuses des tribunaux ordinaires fussent 
remplies. Il est juste d’ajouter que le nouvel arche- 
véque Cranmer, avait essayé d’établir que Catherine, 
avait été la fiancée, avant son mariage, de son complice 
dans le crime dont elle était accusée. Mais, il n’y eut 
pas moyen d’établir le fait et Catherine dut périr sur 


268 Le Divorce 


V’échafaud pour rendre Henri veuf une cinquiéme fois. 
Je ne vous conteste pas que vous puissiez trouver la un 
argument en faveur du procédé Naquet. En effet, si 
Henri avait pu obtenir un divorce, il n’y avait plus 
besoin de lois du Parlement, et l’on n’était pas réduit 
& invoquer l’aide du bourreau. Mais, d’un autre cété, 
vous admettrez que jusqu’a présent vous ne voyez chez 
Henri ni chez ses conseillers spirituels aucune pratique 
dans le genre de celle que vous défendez 1 éloquem- 
ment. 

Mais Henri ne s’arréta pas 1a. Il se maria pour la 
sixiéme fois. Mais cette fois le divorce fut prononcé— 
bien a temps aussi—pour la reine. La mort vint inter- 
rompre le cours de cette vie agitée et, chose singu- 
liére, Henri VIII. efit enfin une veuve! Elle dut 
bien respirer quan delle se vit libre, particuliérement 
quand elle put connaitre les noirs desseins que nour- 
rissait a son égard son défunt consort. 

Vous voyez donc, Monsieur, que le roi Henri, dans 
la vie privée—si ce mot est admissible—n’a pas 
montré qu'il serait de votre cété lorsqu’il s’agit d’en- 
courager les unions temporaires ou, si vous préférez, de 
permettre aux époux mal assortis de se débarrasser 
lun de l’autre sans homicide volontaire. Vous verrez 
que ce méme roi était fort Catholique dans ses théories 
religieuses. I] eut méme accepté le dogme de 1’In- 
fallibilité—pourvu qu'il ffit reconnu comme Pape. La 
discussion religieuse était fort dangereuse en sa présence 
et je ne vous aurais pas conseillé de faire de la théologie 
de fantaisie devant lui. De nos jours je n’y vois 
guére d’inconvénient puisque cela vous fait plaisir; 
cela amuse vos lecteurs et cela vous range d’un coup 
parmi les théologiens éminents qui s’occupent en ce 
moment de faconner la conscience de la France. Mais 


Le Divorce 269 


l’on a vu dans ces premiers jours de révolte contre 
l’Eglise, catholiques et protestants trainés sur la méme 
claie, pour périr sur le méme échafaud. Vous me 
direz que cela vous est bien égal comme vous n’étes ni 
l'un ni l’autre: n’importe, la neutralité méme a ses 
dangers. 

Maintenant voyons si, dans la législation Anglaise 
faite pour le commun des martyrs, il y a une trace de 
ces lois de divorce qui datent suivant vous de Henri 
VIII., c’est & dire de plus de trois siécles. J’ai beau 
chercher, creuser, demander, je ne vois rien venir. 
Vous serez bien surpris d’apprendre que la premiére 
loi établissant des Tribunaux pour les causes de 
divorce et permettant le divorce, date seulement de 
quelques années: elle est plus jeune que vous puis- 
qu’elle date de 1858, époque, si je ne me trompe, ot 
vous aviez déja enrichi la littérature de votre pays 
des ‘“‘Aventures de 4 femmes et d’un Perroquet.”’ 

Cet ouvrage (que j’ai lu du reste avec l’intérét que la 
“jeunesse porte toujours 4 ces singuliers produits de 
l’intelligence) fut écrit, je crois, avant que vous ne 
fussiez diplomé moraliste: je le crois et je l’espere. 

Avant d’examiner cette nouvelle loi, et de vous 
démontrer combien peu elle répond a vos aspirations, 
laissez-moi vous consoler par une petite concession— 
hommage dfi a la vérité historique: c’est que l’on 
pouvait divorcer en Angleterre avant cette date ré- 
cente pourvu que l’on efit les moyens de se procurer 
une loi spéciale du Parlement. Le Parlement, vous 
devez le savoir, est omnipotent. Il peut changer la 
religion de ]’Etat, la succession royale, les articles de 
foi,—il peut bien accorder une séparation 4 un époux 
influent et riche. Mais un court examen de cette 
situation exceptionnelle ne fera, je crois, que vous 


270 Le Divorce 


prouver la vérité de ce que j’avance, lorsque je vous 
affirme que la théorie du droit anglais et la théorie de 
l’Eglise romaine se ressemblaient a s’y méprendre, 
c’est & dire jusqu’en 1857. Si vous ne me croyez pas 
sur parole, je vais vous citer ce que dit l’Encyclopédie 
Britanmique, édition nouvelle—art. ‘‘ Divorce”’: 


Jusqu’au passage de la loi sur le Divorce de 1858 la théorte 
de la loi d’Angleterre était la méme que la théorie de |’ Eglise 
romaine. Il y eut bien des efforts durant la période de la 
réforme pour introduire une plus grande facilité dans le 
divorce . . . mais la loi demeura la méme. La con- 
stitution des mariages était du ressort des tribunaux 
ecclésiastiques. Le lien était indissoluble. Le mariage pou- 
vait, il est vrai, étre déclaré nul dans certains cas, par 
exemple lorsque la parenté des conjoints les rangeait dans 
les degrés prohibés. Mais cette procédure ne constituait 
pas une dissolution du mariage autant qu’elle déclarait 
qu’aucun mariage n’avait eu lieu entre les parties. La 
séparation de corps et de biens était accordée pour adultere 
et pour cruauté. Dans ces cas le mariage, étant dans 
l’origine valable, n’était pas dissous, mais une séparation 
était décrétée pour une époque déterminée ou pour un 
temps indéfini. 


Voyez, Monsieur, comme ces quelques lignes viennent 
se heurter contre vos affirmations! Que devient 
votre théorie en tant qu’elle est basée sur les progrés 
moraux si surprenants qu’a pu faire le peuple anglais 
par la simple énonciation d’une loi de divorce? Et 
s'il est démontré que la supériorité morale du peuple 
anglais ne découle pas de la facilité supposée avec 
laquelle les €poux se séparent, comment pouvez-vous 
affirmer que votre loi va vous relever de votre abaisse- 
ment, purifier vos moeurs et vous rendre les égaux des 
Allemands et des Anglais? 


Le Divorce 271 


Maintenant revenons a ces actes du Parlement par 
lesquels le divorce fut quelquefois prononcé. Cette 
bouée de sauvetage était-elle suffisante pour empécher 
les sinistres? Cette pompe a incendie fonctionnait- 
elle de facon & assurer le bien public? 

Il n’est pas difficile de vous répondre. Voyons 
d’abord la procédure pour mettre en mouvement ce 
corps auguste que l’on nomme le Parlement. II fallait 
pour obtenir ce reméde du divorce trois procés—c’est 
tout. Mais comme ils étaient tous assez longs—je ne 
parle pas ici de la dépense—il est fort probable que 
dans bien des cas la mort se chargeait de la poursuite 
ou de la défense et tranchait la question sans appel. 
La procédure était celle-ci: 

1. I fallait s’adresser aux tribunaux ecclésiastiques ; 
comme ils pouvaient seulement accorder ce que leur 
permettait la loi, ils séparaient les conjoints en at- 
tendant mieux. 

2. Mais il fallait aussi que le mari poursuivit le com- 
plice de sa femme en dommages intéréts. 

3. En admettant qu’il réussit dans ces deux affaires 
et qu'il ne fat pas mort de vieillesse ou autre cause 
légitime, il pouvait s’adresser au Parlement. “Trois 
procés’’—je cite encore l’Encyclopédie—‘‘ trois proces 
ecclésiastique, civil et parlementaire étaient néces- 
saires.”” Le divorce devint le reméde du riche. Et 
cependant ce ne fut qu’en 1857, et méme alors en face 
d’une opposition déterminée, que cet état de choses 
pitoyable fut modifié. 

Voici comment un magistrat éminent expliquait les 
absurdités de ce systéme & un pauvre diable accusé de 
bigamie. Pour toute défense il avait pu seulement 
expliquer que sa femme l’avait volé, puis qu'elle 
s’était enfuie avec un autre homme. Et cela, voyez 





272 Le Divorce 


donc, dans le pays de la Réforme et d’ Henri VIII.! 
M. le Juge Maule lui adressa alors la semonce suivante 
(ceci se passait en l’an de grace 1845): 


Vous auriez di commencer un procés en dommages 
intéréts. Des dommages obtenus, votre adversaire n’au- 
rait probablement pas pu vous payer le premier sou, et 
vous auriez eu a payer vos propres frais, soit, cent ou cent 
cinquante livres sterling. Vous auriez dfi ensuite vous 
présenter devant les tribunaux ecclésiastiques pour y 
obtenir une séparation de corps et de biens et alors ala 
chambre des Pairs ol, aprés avoir prouvé que vous aviez 
rempli ces formalités préliminaires, vous auriez recu la 
permission de vous remarier. 

La dépense aurait été de 300 & 1,000 livres sterling. 
Vous dites que vous étes pauvre: mais je dois vous dire 
qu’il n’y a pas une loi pour le riche et une autre pour le 
pauvre. 


Comme le pauvre forme un élément trés considérable 
de la population britannique, vous m’avouerez qu'une 
procédure qui cofite tant de peine et tant de temps et 
qui exige une dépense de 20,000 & 25,000 francs n’est 
pas d’un secours bien efficace. Comme vous montrez 
une sympathie trés naturelle pour la femme et qu’elle 
aussi a besoin de protection, vous tiendrez ce reméde par 
voie législative en mince estime lorsque je vous dirai 
que cette chambre, peu galante, repoussait générale- 
ment les pétitions que présentaient les épouses out- 
ragées. Pour préciser, je vous dirai que le premier 
divorce accordé a une femme date du siécle présent, 
et encore cela se fit-il sous des circonstances excep- 
tionnelles. Si done vous excluez toutes les femmes et 
tous les pauvres, vous avez un systéme passablement 
arbitraire et bien peu propre a moraliser les masses. 
Et méme pour les hommes riches, les divorces parle- 


Le Divorce 273 


> 


mentaires ne commencérent 4 compter que lorsque 
les Georges arrivérent d’Allemagne et donnérent cette 
impulsion & la cause des mcoeurs qui se développa d’une 
facon si brillante sous George IV. 

Mais il nous reste & examiner la loi de 1857. Celle-la, 
elle existe: je vous en accorde tous les bénéfices, mais 
franchement je crois que le systeme Naquet est peut- 
étre moins mauvais. Cela peut paraitre invraisem- 
blable, mais jugeons la d’aprés vos propres regles. 

La loi sur le divorce, dites-vous, doit étre égale pour 
tous. L’homme ne doit avoir aucun avantage sur la 
femme. Les lois qui refusent leur protection a l’étre 
faible et opprimé ne peuvent étre bonnes, puisqu’elles 
commencent par consacrer l’injustice et par violer les 
préceptes les plus élémentaires de l’équité. 

Or, que dit la loi de 1857? Elle est d’autant plus 
intéressante qu'elle est basée quant a la femme sur lan- 
cienne coutume parlementatre. Comme vous l’avez vu 
plus haut et comme vous pouvez vous en convaincre 
en consultant McQueen (Procéd. Parlementatre, 473 
et seq.), il ne fut jamais d’usage d’accorder a la femme 
un divorce pour le simple adultere du mari. I) fallait 
des circonstances aggravantes de la part de celut-ci, 
quoique, de son cdété, l’adultére de son €pouse dans sa 
simplicité la plus compléte était suffisant. La loi de 
1857, se conformant a ces principes, accorde toujours 
la méme faveur au mari, aussitét qu’il a établi que la 
femme depuis la célébration du mariage s’est ren- 
due coupable d’adultére. Mais lorsqu’il s’agit des 
torts maritaux, la simple peccadille dont il s’agit ne 
sufft plus. Il faut qu’il y ait de la part du con- 
sort male: 

1. Adultére. 


2. Désertion. 
18 


274 Le Divorce 


3. Que la durée de cette désertion soit d’au moins 
deux ans. 

4. Quelle soit sans excuse raisonnable. 

Il y a quelques autres cas prévus de grossiére bru- 
talité, de bigamie, d’inceste, etc., qu'il ne nous con- 
vient pas d’examiner, car je pense qu’ils sont rares 
en Angleterre, méme, ne vous déplaise,en France. Ily 
a encore un cas ott la malheureuse épouse pourrait étre 
débarrassée de son époux; c’est celui ott, non content de 
former des liens immoraux hors de chez lui, le mari 
traiterait sa femme avec tant de cruauté que les 
tribunaux ecclésiastiques accorderaient la séparation 
de corps et de bien. C’est &@ dire que l’adulteére lui est 
permis, pourvu qu'il ne la batte pas et que la cruauté 
n’entraine pas grand chose pourvu qu’il se passe de 
consolations illicites. Vraiment M. Naquet doit étre 
fier. Il n’aurait pas trouvé ces combinaisons ingéni- 
euses pour encourager ses concitoyens volages. 

Si donc vous allez moraliser la France par le divorce, 
parceque la moralité anglaise est due a cette cause, 
vous m’avouerez, Monsieur, que votre édifice repose 
sur un bien faible fondement. Cette vertu supérieure 
doit étre due a quelque autre cause, peut-étre a un 
théatre plus pur, une littérature plus saine et autres 
choses que vous connaissez mieux que moi. 

Je me figure cette excellente dame anglaise ayant a 
se plaindre de son mari. Charmé par une de ces 
sirénes aux cheveux blonds, que vous peignez si bien, 
il oublie ses 70 ans, sa femme, ses enfants, son honneur. 
Il abandonne tout cela pour visiter Cythére en com- 
pagnie de la dite siréne. II peut faire cela sans risque, 
sans scrupules, légaux au moins, pourvu que, parti le 1 
janvier, 1880, il soit rentré au domicile conjugal avant 
minuit du 31 décembre, 1882. Le voyez vous d'ici 


Le Divorce 275 


bouclant sa valise, embrassant sa Marguerite, prenant 
son billet de chemin de fer, tout cela au grand galop 
pour ne pas dépasser le terme fatal—la pauvre délaissée 
attendant, comptant les secondes de crainte qu il 
n’arrive avant l’heure attendue depuis si longtemps? 
Quelques instants de plus, il sera trop tard, elle sera 
libre. Hélas! il n’a pas manqué le train, les deux 
années auront encore cing minutes a vivre—elle est 
perdue! il est sauvé! C’est la ce que vous appelez ce- 
pendant sa bouée de sauvetage, sa pompe a incendie! 

Pour |’Allemagne et ses vertus morales, inconnues 
ou négligées dans votre pays, je n’y connais pas grand 
chose, mais je m’étais laissé convaincre que le “ Pays 
des milliards”’ ne valait guére mieux que celui d’ou 
provenaient ces trésors. Je sais que les Allemands 
catholiques et protestants se sont fort bien battus 
contre la France en 1870, mais je n’ai jamais supposé 
que la question de divorce efit efi beaucoup d’influence 
sur les résultats de Reichshoffen et de Sedan. L’on 
était pauvre, bien discipliné, bien commandé d’un cété; 
riche, délicat, orgueilleux, peu discipliné, médiocrement 
conduit de l’autre. Maintenant que vous avez vos 
milliards en moins et les Allemands ces milliards en 
plus, je crois bien que votre niveau moral est un peu le 
méme. Vous aviez trop de prospérité, de bien étre et 
de jouissance chez vous. Votre grand-pére, le général, 
vous aurait dit que ce n’est pas avec cela que se font 
les soldats patients et durs. 

Pour la chére petite Suisse avec ses enfants blonds, 
roses, bouclés, aimant les mulitaires, je ne pense pas 
que ces jolies qualités soient dues exclusivement a la 
liberté conjugale, telle que vous l’entendez. J’en ai 
vu de blonds et bouclés en France aussi, et j’aime a 
croire que leurs méres étaient tout aussi pures que 


276 fe. Divorce 


ces blondes montagnardes que j’estime autant que 
vous. 

Arrivons maintenant aux Etats-Unis d’Amérique. 
Ici, je l’avoue, je suis pris par mon cété faible, et je 
veux bien admettre, puisque vous y insistez, que nous 
possédons toutes les qualités morales, qui, suivant 
vous, manquent a vos compatriotes. Seulement, nous 
ne nous doutions pas, soyez en certain, que l’excellence 
exceptionnelle de nos mceurs dfit étre attribuée a nos 
lois de divorce. 

Ces lois de divorce existent, dites vous, aux Etats- 
Unis. Comme thése générale vous avez presque raison 
et je suis heureux de vous féliciter de ce succes relatif. 
Mais vous n’étes pas dans la vérité absolue, car l’Etat 
de la Caroline du Sud n’a jamais voulu accepter une 
législation qui portat atteinte a la dignité du mariage. 
Et cet Etat n’est pas un des moindres de 1’Union, 
si nous considérons le courage et l’intelligence des 
citoyens comme éléments de grandeur. Ses fils ont été 
parmi les plus distingués de notre histoire nationale. 
Ils ont brillé dans notre législature, dans nos guerres, 
dans notre politique et méme dans cette guerre de 
Sécession a laquelle vous faites allusion. Elle a fait 
presque oublier la faute primitive qu’elle a commise, 
par l’ardeur de son courage et par l’héroisme d’une 
résistance désespérée. Elle a démontré, dans tous les 
cas, que la virilité de ses enfants a pu résister méme a 
l’indissolubilité du mariage. 

Quant aux autres Etats ot il y a en effet ce que vous 
appelez vaguement ‘‘des lois de divorce,”’ il ne faut pas 
supposer qu’ils soient encore arrivés a la perfection, 
telle qu'elle apparait dans votre beau projet. 

Dans l’Etat de New York—1l’Etat ImpEriat de New 
York—les époux peuvent recourir a cette extrémité, 


Le Divorce 277 


mais il n’y a qu’une seule cause reconnue par nos lois. 
L’époux adultére—mari ou femme—peut-étre déclaré 
indigne du nom honorable de mari ou de femme, 
s'il a violé cette clause de son contrat. La loi le dé- 
clare déchu de sa dignité domestique et lui interdit le 
re-mariage.| Cette loi vous semble bien peu satis- 
faisante, n’est ce pas? Et puis la procédure n’est pas 
trop facile. Il faut que la faute soit bien et diment 
constatée; il faut que la partie demanderesse n’ait eu 
aucune part dans la commission du crime de leése 
mariage, autrement elle ne pourra bénéficier de la 
faute, puisqu’elle y a trempé. Ce systeme me semble 
tellement différent du vétre qu’il ne doit pas vous étre 
d’un grand secours. Si vous écartez l’élément catho- 
lique, il ne semble nullement étrange qu’un contrat 
attaqué dans son essence la plus intime par une des 
parties puisse étre dissous au bénéfice de l'autre. Et 
méme 1’élément religieux qui compte pour quelque 
chose, méme en dehors de 1’Eglise romaine, trouve une 
certaine satisfaction dans le texte que vous citez de 
Saint Mathieu et ne voit rien de contraire a la loi di- 
vine dans une semblable séparation. S’il doit y avoir 
une législation sur le divorce, nul ne pourra nier que 
celle-ci soit la plus logique, la plus digne, la plus dé- 
cente, que l’on puisse inventer. 

Dans les autres Etats vous trouveriez une législation 
qui varie suivant les besoins et les opinions des popu- 
lations respectives. Il y a parfois une bien regrettable 
facilité dans la loi, mais nulle part n’a-t-on vu proposer, 

1 La loi de New York a été changée en 1879 afin de permettre a 
Y’époux convaincu d’adultére de se remarier en obtenant une 
permission spéciale de la Cour; cette permission peut-étre accordée 
lorsque cinq ans se sont écoulés depuis le divorce, que le défendeur 


fait preuve de bonne conduite pendant cet intervalle, et que le 
demandeur est remarié. 


278 Le Divorce 


a ma connaissance, un projet de loi aussi subversif, 
aussi extravagant que celui que vous voulez imposer a 
votre pays. Rien de la sorte n’est venu, Dieu merci, 
souiller jusqu’ici notre législation et si le jour arrivait, 
jaurais une aussi mince estime de la vertu de mes 
concitoyens que vous avez vous-méme de la moralité 
des votres. 

Ceci est trés facile a dire: voyons si c’est susceptible 
de démonstration. 

D’abord, votre loi Naquet est absurde et illogique. 
C’est clair comme le jour; voici pourquoi. (Je cite les 
premiers articles tels que vous nous les donnez:) 

* Le divorce a lieu par le consentement 
mutuel des époux, ou par la volonté d’un seul. 

‘‘ Le divorce par la volonté d’un seul a lieu: 

‘‘t. Pour cause déterminée; 2. Sur la demande ex- 
presse et persistante de l'un des époux, affirmant sa 
volonté de dissoudre son mariage sans invoquer néan- 
moins de cause déterminée.”’ } 

Je vous défie, Monsieur, de faire une clause plus large 
que celle-la. Elle couvre tous les cas possibles et 
imaginables. Si l’époux peut dire: ‘‘ fe veux dissoudre 
mon mariage,” sans alléguer d’autre motif que sa 
volonté, quel besoin de donner des causes déterminées? 
Stet pro ratione voluntas. Sa volonté prend place de 
toutes les raisons, elle prime tous les arguments. II est 
donc aussi inutile qu’absurde de déclarer quelles causes 


1‘*Je dois dire ici que je ne connais le projet de loi Naquet 
que par le texte qu’en publie M. Dumas. Je ne connais donc pas 
les détails de procédure, de délais, etc., dont il ne parle qu’en 
termes trés généraux. II est possible que ces détails viennent 
modifier en quelques points la brutalité du texte—mais ils ne 
peuvent empécher que le conjoint mécontent ait recu le droit 
inqualifiable de dissoudre le mariage de sa propre volonté, sans 
tnvoquer de causes déterminées.”’ 


Le Divorce 279 


peuvent suffire puisqu’il n’en est besoin d’aucune. A 
quoi bon parler plus tard, dans ce méme projet, de 
causes déterminées, telles que les sévices, l’abandon, les 
maladies, l’absence, etc. N’ai-je pas raison de dire que 
c’est parfaitement absurde? 

Quant au divorce basé sur le consentement des deux 
époux, j’en comprends la logique. En effet, l’acte de 
mariage ne constituant qu’un contrat ordinaire, dé- 
barrassé de tous les éléments de religion, d’ordre public, 
de nécessité sociale, il est naturel que les époux mal 
assortis ou variables se quittent pour aller chercher 
ailleurs ce qu’ils ne trouvent pas dans le conjoint qu’ils 
possédent. Si je vous achéte un cheval et qu’au bout 
d’un mois, il me plaise de vous le rendre et a vous de 
l’accepter, rien de mieux. Si je prends une cuisinicre 
et qu’avant la fin du terme convenu, ses ragofits ne me 
convenant pas, il me plaise de la congédier, rien de 
mieux, pourvu qu'il lui plaise de s’en aller. Mais ce 


XX 


privilége inqualifiable accordé a4 l’une des parties de 
rompre A son gré, sans cause déterminée, le contrat le 
plus important de tous, cette faculté exorbitante don- 
née a l’homme de chasser une femme honnéte et pure 
aussit6t sa passion assouvie,—a la femme d’aban- 
donner le mari aussitdt qu’elle en trouve un mieux 
fait ou plus riche ou plus aimable que celui qu'elle a, 
et qui l’aime toujours, cela dépasse tellement les 
bornes, que je crois vraiment que vous déshonorez le 
nom méme du divorce et que vous devriez inventer 
quelque chose de nouveau pour qualifier une mon- 
struosité semblable. 

Mais, Monsieur, avez-vous réfléchi, lorsque vous nous 
avez recommandé cette nouveauté? Avez vous pensé 
aux conséquences fatales de cette écluse ouverte aux 
passions brutales, égoistes de notre pauvre humanité? 


280 Le Divorce 


Quoi! vous, pére, vous élevez votre fille dans une at- 
mosphére de candeur, d’innocence, d’affection, vous la 
préparez a devenir la femme d’un homme de bien en 
cultivant ces qualités de coeur et d’esprit que l’on 
trouve tout aussi souvent chez vous qu’autre part; 
vous la donnez en mariage, belle, chaste, aimante, a 
Vhomme qui lui plait; puis un beau jour, le caprice de 
cet homme ayant duré un mois, deux mois, six mois, 
il peut aller tranquillement chez un juge lm dire: 
“Monsieur, je viens ici vous faire la demande expresse 
et persistante exigée par cette admirable loi Naquet; 
c’est ma volonté de dissoudre mon mariage. Dépéchez 
vous, je vous prie, car j’ai devant moi une jeune fille 
que je désire épouser et si vous ne vous hatez un autre 
me l’enléverait.”’ 

Et si ce magistrat, peu rompu aux affaires de ce 
genre, interpose une objection assez naturelle, s’1l lui 
demande les motifs, (est-ce l’adultére, les injures graves 
la calomnie, etc.?) le postulant lui dira tout bonne- 
ment d’aller se promener, qu'il n’y a rien de ce genre 
et que la loi Naquet lui permet expressément de faire 
dissoudre son mariage, sans invoquer néanmotns de cause 
déterminée. 

Et cette jeune fille, devenue jeune femme, se trou- 
vera la, avec l’enfant qui doit naitre et qui ne recevra 
jamais les caresses d’un pére—divorcée sans faute, 
sans étre entendue, puisqu’il n’y a pas de défense 
possible; elle se trouvera la regardant son mari s’en 
allant bras dessus, bras dessous, avec la voisine d’en 
face et se rendant chez le maire pour recommencer! 

Cette pauvre créature qui a donné tout ce qu'elle 
avait de trésors, sa beauté, son coeur, son corps, son 
ame a cet époux, elle devra suivant vous bénir M. 
Naquet qui lui a ouvert, a elle comme a lui, un vaste 


Le Divorce 281 


horizon de mariages libres et sans limites. Et vous 
appelez cela une loi morale qui doit viriliser la France 
affaiblie, anémique, relachée! 

Ce systéme, Monsieur, vous n’avez pu le comprendre, 
car vous auriez vu qu’il ne s’agissait plus de mariage 
mais de prostitution légalisée, prostitution d’autant 
plus hideuse qu’elle se pare d’un plus beau nom, 
d’autant plus a craindre qu’elle recrutera ses victimes 
dans ce qu’il y a de plus pur et de plus beau chez vous. 

Et que deviendra la sécurité du foyer devant cette 
menace constante, contre laquelle la vertu la plus 
pure ne peut se prémunir? 

Quel mari sera bien stir de son bonheur domestique 
—quelle femme pourra compter sur un lendemain? 
Le ménage sans nuages est bien rare, Monsieur, s’il 
existe! La mauvaise humeur de l’homme, les nerfs 
de la femme, les préoccupations de tous les jours, la 
recherche du pain quotidien, l'amour propre froissé, 
les déceptions de tout genre—cela entre dans toutes 
les familles par la porte, par les fenétres, par les toits, 
Pensez-vous qu’une loi devrait venir souffler le mot 
divorce & l’oreille des époux, dans ces moments d’ennui, 
de lassitude, pour ouvrir un champ a leur imagination, 
en leur promettant une séparation qu’ils regretteront 
peut-étre, aussitét faite, une liberté qui, aussitdt 
acquise, ruinera leur bonheur? 

Vous avez d’autant moins droit a l’indulgence que 
vous ne faites pas une expérience nouvelle. Votre 
systéme a été essayé, vous devriez savoir avec quels 
fruits, non pas en Allemagne, en Angleterre ou aux 
Etats-Unis, mais dans l’ancienne Rome. Et vous n’avez 
pas le droit de supposer que les mémes causes ne pro- 
duiraient pas les mémes effets. La nature humaine est 
la méme aujourd’hui qu'elle était dans Rome du temps 


282 Le Divorce 


de Juvénal et vous vous rappellerez peut-étre qu'il 
parle d’une dame qui s’était octroyé hut maris dans le 
courant de cinq automnes. Martial va bien plus loin 
puisqu’il parle d’une matrone qui comptait dix maris 
dans un mois! Saint Jérdme raconte et affirme avoir 
vu un mari conduire au tombeau sa vingt et uniéme 
épouse; elle avait eu, pour sa part, vingt deux maris. 
Et cela sous un systéme qui avait bien de la ressem- 
blance avec le vétre. Si vous voulez étre plus am- 
plement renseigné, lisez l’historien anglais Gibbon; sa 
double qualité d’Anglais et de non catholique en fait 
un témoin recommandable. 


Une théorie spécieuse est réfutée par cette libre et par- 
faite expérience, gui démontre que la liberté du divorce ne 
contribue pas au bonheur et ala vertu. a facilité de sépara- 
tion détruirait toute confiance réciproque et envenimer- 
ait les discussions les plus futiles: le différend insignifiant 
entre le mari et le tiers, qui pouvait é€tre si facilement 
éclairci, pourrait étre encore plus facilement pardonné, et 
la matrone qui dans cing ans a pu recevoir les caresses de 
huit époux doit perdre son respect pour la chasteté de sa 
propre personne.—(Gibbon, Empire Romain, chapitre 40.) 


Un mot de plus avant de vous exprimer l’assurance 
de ma considération distinguée. J’ai lu vos brillants 
paradoxes avec le plaisir que j’éprouve toujours quand 
je vous vois faire vos tours de force littéraires, mais il 
m’est resté, sur un point touché par vous, une im- 
pression pénible que d’autres peut-étre ont pu partager. 
Il peut donc étre utile de vous la signaler. C’est de 
vous entendre, vous, l’enfant gaté de la France in- 
telligente, vous, roi de la mode et de la vogue litté- 
raire, outrager votre patrie par des comparaisons qui 
la mettent aux pieds des autres nations, ou par des 


Le Divorce 283 


plaisanteries qui sont indignes de vous comme delle. 
Pensez-vous sérieusement que le type moral de Berlin 
vaille mieux que celui de Paris, que toutes les femmes 
chastes et les jeunes filles pures soient de l’autre cdté 
du Rhin ou de la Manche? Les liens de famille sont- 
ils tellement relachés en France que vous puissiez 
écrire sans une exagération ridicule chez tout autre 
que vous, des phrases comme celle-ci: 


Pour subvenir aux besoins de la maitresse, on se réunit 
plusieurs, tandis que pour satisfaire aux fantaisies de 
l’épouse, on est seul, quelquejois. 


Méme vous, étes vous assez sir de votre public pour 
yous permettre ces vilaines choses 1a? Ah, Monsieur! 
si Dieu m’avait donné votre talent—sans votre Diable 
—ce n’est pas comme cela que je voudrais lui parler. 
Je ne lui dirais pas que ses femmes et ses filles sont 
indignes de regarder en face les femmes et les filles de 
ses voisins. Je ne lui peindrais pas ses faiblesses en 
termes exagérés pour aiguiser un paradoxe. Mais je 
les lui montrerais telles qu’elles sont—fortes, braves, 
patientes, laborieuses, intelligentes, sachant accepter les 
épreuves sans bassesse, et réparant par le travail et le 
recueillement les blessures d’une guerre malheureuse. 
Je lui montrerais l'histoire de ce passé si brillant, ot la 
France fut toujours la premiére dans les arts de la paix 
comme dans ceux de la guerre. Je lui nommerais ses 
grands hommes qui ont ouvert de nouveaux sentiers a 
Vhumanité et devant lesquels on se découvre encore. 
Je reléverais ce moral affaissé, par la vérité sur ce 
passé si beau, et je lui ferais comprendre que l'avenir 
ne peut-étre perdu pour les descendants de pareils 
ancétres. Dans les arts les sciences, la poésie, la phi- 
losophie, la bienfaisance, le martyre, tout ce qui est 


284 Le Divorce 


grand et beau, n’a-t-elle pas toujours été le porte- 
drapeau? Vous aurez beau faire, Monsieur, avec 
toutes ses fautes, elle est encore créanciére dans son 
compte courant avec la famille humaine. 

Mais Dieu ne m’a pas donné votre talent—ni votre 
Diable non plus. Je me console en pensant qu'il y a 
compensation et que je suis peut-étre et apres tout le 
mieux partagé des deux. 

Je dois m’arréter, Monsieur: vous seul avez le droit 
d’exiger du public qu'il lise une brochure de 400 pages. 

Veuillez agréer, Monsieur, l’assurance de ma grande 
admiration et de ma considération la plus distinguée. 


New YorK, 15 mars, 1880. 








XIV 


MORALS AND MANNERS! 


Corinthians, 15th Chapter, Verse 33, of the version 
commonly associated with King James, you will 
find that he uses these words: 


|" you will turn to Saint Paul’s ist Epistle to the 


“Evil communications corrupt good manners.”’ 


You may think it strange that the Apostle, who 
had devoted his life to the weightiest matters that can 
engage the attention of men, should give utterance to 
a sentiment which, however true in itself, seems 
almost beneath his notice. This reflection, coupled 
with the fact, perhaps, that you do not place implicit 
reliance upon that version of the Scriptures which I 
have quoted, may induce you to look to some other, 
and, in your judgment, more reliable text, in order to 
ascertain whether justice is done to the illustrious 
Saint. If, pursuing your investigations, you turn to 
one of the most recent and approved versions used by 
Catholics (Archbishop Kenrick’s), you will find that he 
makes the Apostle say: ‘Evil communications cor- 
tupt good morals,” which is much more in accordance 
with what we know of the teacher’s object in writing 

1 An address delivered under the auspices of the Catholic Union, 
1873. 

285 


286 Morals and Manners 


letters. Satisfactory as this may appear, I advise you 
to go on still farther in your researches until you reach 
the last edition, from the presses of a Society which 1s 
distinguished for the excellent and orthodox character 
of its publications. This contains precisely the same 
words as the King James version, and puts into the 
mouth of the Apostle the words ‘‘ Evil communications 
corrupt good manners.” 

You have, no doubt, been taught, and your expe- 
rience must have confirmed the impression, that 
manners were one thing, and morals another. You 
may therefore be a little puzzled to understand how it 
is that, on a matter of this importance, there should be 
such a discrepancy in the enunciation of precepts 
which you are bound to accept and to revere as pro- 
ceeding from an inspired pen. You will ask yourselves 
whether St. Paul alluded to morals—that is, the inward 
graces and guiding principles which control the actions 
of men, or to manners, which are only the outward 
manifestations of those sentiments, which manifesta- 
tions may be sincere or insincere, truthful or untruthful, 
and consequently respectable or the reverse. Of one 
thing we may be assured, that St. Paul cared but little 
for mere external appearances, for “nods and becks 
and wreathéd smiles,’ and that he never presented 
himself to his hearers as a teacher of deportment. 

But the sentiment that I have quoted was not 
original with the great Saint. It was borrowed from 
the heathen poet Menander who lived two hundred 
years before the Apostle, and wrote for his hearers 
words which St. Paul afterwards made immortal by 
retracing them. 

Having gone back as far as Menander, I think I may 
fairly abstain from farther retrogression, and ask what 


Morals and Manners 287 


he meant by good manners, and, what concerns us 
more closely, what the Apostle, who followed him and 
quoted him, intended to convey by the expression. 

As to the poet himself, I may take occasion here to 
say that, from what we know of him, it is no injustice 
to his memory to say that his manners were better 
than his morals, and that if he came to the conclusion 
that either were liable to corruption from evil com- 
munication, he spoke from actual experience. 

It is but fair, however, to add, that the time in which 
he lived was one of great corruption, and required 
something more than the harmonious generalities of 
graceful poets to purify them. Nor must we forget 
that both morals and manners have had different 
standards in different ages, and in various countries, 
and that nothing can be more unjust or more un- 
philosophical than to judge of the manners of one age 
or country from the standpoint of another. 

Here let me enter my protest against one fallacy— 
that is, the fashion of referring to bygone times as 
“those good old times,” from the excellence of which 
we are supposed to have so sadly degenerated, and 
which assumes that everything must have been good 
simply because it existed in former days. I know 
that such has been the tendency of men certainly for 
two thousand years back, for the poet Horace, some 
twenty centuries ago, spoke of the habit which old 
people even then indulged in of bemoaning the ex- 
cellence of the days “when they were boys.”” Indeed, 
we may safely say that this tendency is a part of our 
common nature, that all men have yielded to it, 
except perhaps the first man Adam, who had no boy- 
hood to regret or to praise! 

But if we look back, seeking to find that period in 


288 Morals and Manners 


the past which deserves to be mentioned with favor in 
comparison with our own, we may seek for it in vain; 
and the more we look the more fully shall we become 
convinced that at no period have men been either more 
moral, or braver, or manlier, or more truthful than 
now. At no time have they been less cruel and san- 
guinary, at no time more generous and just, at none 
more merciful to the weak and helpless. I do not 
when I make this assertion allude to any special year 
or short series of dozen years, for there are brief periods 
in which a people or a community might be said to 
pass through a transition state. I think our own 
country is going through such a state at this moment, 
and many things which we now deplore are but the 
result of a great convulsion such as no nation has yet 
successfully withstood: we are reaping a harvest the 
seeds of which were sown during five years of civil war. 

But looking to the past, take any country that you 
please, and compare its present condition with that of 
a former period, and the truth of my statement will be 
illustrated and proved. 

Turn to France. She has always led the van of 
modern civilization, has long been first in war, and 
art, and science; she has ever shown a generous dis- 
position to share with the rest of the world the treas- 
ures that she had, or fancied she had, discovered. 
How long would she now endure the base profligacy 
and the elegant immorality of her Grand Monarque and 
his Court? How long would she submit to the degra- 
dation of being ruled by such a king as his successor? 
How long would she endure the unspeakable shame of 
being governed by the regent that followed him? 

Turn, if you please, to Great Britain. Commence 
with the first of the Georges, following down through 


Morals and Manners 289 


their reigns of egotism, madness, and brutality, and 
tell me how they compare with the sovereign now 
upon the throne? 

Turn to Ireland, so long misgoverned and outraged, 
and tell me whether her condition is not infinitely 
better at this day than at any time since Cromwell’s 
soldiers spread ruin and death over the land? 

Look at the legislation of all civilized nations: the 
softened penal laws which no longer inflict death for 
the most trifling violations; the condition of women 
improved by a system that permits her to earn her 
bread and feed her children; see slavery dying out; 
the condition of the poor a constant object of solicitude ; 
religion free to lead men to better lives and a better 
end ;—and then tell me what age that went before is 
to be regretted? 

To return, then, to the line that I have quoted, and 
which is thus differently translated, I ought to ex- 
plain that for long after Menander’s time, and after St. 
Paul’s, one single expression was used to denote what 
we call manners, and what we designate as morals. 
The necessities of more modern times have required 
that we should subdivide the common word that 
heretofore existed, and which was ‘‘mores”’ in Latin, and 
‘“manners’”’ in English. With this before us, we can 
understand why the translators of the Epistle above 
alluded to use the word “manners,”’ which no longer 
conveys the idea intended, and which would seem to 
give to graceful carriage and elegant deportment an 
importance which belongs to more substantial qualities 
of mind and heart. What connection there really is 
between the two, morals and manners, as now under- 
stood; how it is that subjects, so dissimilar, bore the 


Same designation; how and when each assumed its 
19 


290 Morals and Manners 


own banner and dissolved the old association; how 
far they still bear traces of their former relationship; 
the history and philosophy of what we call manners 
as well as of morals;—to consider this would fill a 
volume. 

I propose only to visit the outskirts of the vast 
territory and ask you to bear me company a while. 

Whether we have an intuitive sense of morality or 
not, 1s a question as to which great writers differ. The 
arguments on both sides are ingenious and plausible. 

It is undeniable that all men feel, or have felt at 
some time of their lives, that they possess a conscience; 
though it may, unfortunately, be true, as a distin- 
guished Englishman says, “that there are infinitely 
more of his countrymen who are troubled by their 
liver than by their conscience.’ But all, even those 
whom years of rebellion have hardened against the 
promptings of the inward monitor, recognize the fact 
that there is somewhere lurking in their bosom a 
moral intuition of right and wrong, and that the 
silent voice within rebukes us when we disregard its 
suggestions. 

On the other hand, we must admit that what is 
permitted or forbidden in the moral code has varied 
at different times with different nations and various 
stages of civilization. ; 

It is manifest that in viewing this question in an 
abstract point of view, we must consider it outside of 
the fixed, definite, and controlling code promulgated 
by Divine authority. That guide we are bound to 
follow, and bound to obey, at our peril, whether its 
dictates meet our approbation or not, whether we 
consider them in accordance with natural law or not, 
and whether it suits us, or suits us not. 


Morals and Manners 291 


But if we look at nations that have lived before the 
dawn of Christianity, or that now live outside its pale, 
we observe an immense difference in those fundamental 
rules which are at this day universally accepted. 

If a gentleman of extraordinary domestic tastes and 
appetites takes unto himself more than the single wife 
grudgingly allowed him, not only the law of morality 
condemns, but the law of the land incarcerates him, 
and yet he can point to the most illustrious examples 
of wise men—nay, to the example of the wisest of all, 
a king that lived in olden times—to justify him in his 
practice. 

If our needy neighbor, unable to dig, and ashamed 
-to beg, resorts to the only alternative left, and takes 
his neighbors’ goods without his neighbor’s permission, 
the stern prohibition of the Decalogue meets him, and 
the offended majesty of the law punishes him; and 
yet, if he is disposed to argue the case, he can point 
to the illustrious example of the Spartan heroes, whose 
republican system of laws ought to deserve some sym- 
pathy and admiration from us; he can easily prove 
that with them the crime lay not in the stealing, 
which was rather a commendable profession, but in 
the weakness that allowed detection. 

So, too, filial reverence is ordained alike by human 
and divine law; but we can turn to numerous in- 
stances where, among the rude savage tribes of the 
world, those whose moral instincts should approach 
the nearest to nature’s law, it is a pious practice for 
men to kill their aged and useless ancestors. 

So, again, you will find that even in Christian times, 
the taking of interest for money was denounced as a 
moral transgression, and forbidden alike by the Church 
and by the law; and yet we have many respectable 


292 Morals and Manners 


money lenders among us; and, fortunately for all 
Catholic churches that I have ever known or heard of, 
loans are sometimes made upon the sacred edifices 
themselves, else we must fain say our prayers in the 
parks. 

Strange and illogical as all this may seem, there is 
an explanation. 

The Spartans, whom I have alluded to as encourag- 
ing theft, were a warlike people, whose sole occupation, 
I may say, was in warfare, and the great aim of their 
system was to encourage daring, cunning, enterprise, 
and skill. Living as they did, with no other resources 
than those furnished by depredation upon their neigh- 
bors, stealing was no longer stealing, but legitimate 
spoliation; just as you find in our modern wars in- 
vading armies and conquering legions making no 
scruple to carry off the portable property of defeated 
enemies, and yet they do not call it stealing. 

So among the rude and savage tribes that I speak 
of, where none but the strong and hardy could obtain 
sustenance, and all must frequently experience the 
cruel pangs of hunger, children thought it humane to 
deprive their parents of life, rather than to allow them 
to struggle under the burden and privations of old 
age. 

Again, with reference to the interest upon money, 
it was only when the requirements of growing com- 
merce and the increasing wants of men demonstrated 
that it was unjust to expect that the possessor of 
capital should loan it without a return, that the law- 
ful and regulated usage of loaning money became 
universal. 

Slavery is another subject which strikingly illus- 
trates the truth of what I have said as to the variable 


Morals and Manners 203 


standard of morals. It is but a decade since slavery 
was a household word in our land; and yet we are 
already beginning to wonder that in our enlightened 
Christian age we tolerated, as we did, a traffic in human 
flesh, and that the theory of Christianity which makes 
all men brothers in Christ, could permit the sale of 
that brother and his offspring on the auction block. 
And yet we can hardly doubt that the introduction of 
slavery was a humane and kindly measure. It was 
the practice in war to slay all prisoners, and gradually, 
as men’s manners softened, they spared the life of that 
enemy, and used him as a servant; so that, cruel and 
wicked as we may believe slavery to be, we cannot 
consistently condemn its origin. 

In all these matters you will observe that the morals 
and manners of men both concurred to the same end. 
It was morally right to do those things, and the fashion 
of doing them became prevalent. Indeed, it is not 
always easy to say exactly where morals end and 
manners begin. The dividing line between the two is 
often so vague and shadowy as to be almost imper- 
ceptible. What we may consider a mere fashion, may 
have at one time been considered a very serious matter 
of morality. For instance, we read in the Book of 
Kings that when certain unruly and disrespectful 
children called the prophet Elijah “Baldhead! Bald- 
head!” the latter at once summoned several fierce 
bears from adjacent woods, and they incontinently 
devoured these turbulent and riotous infants. We 
may fairly infer from the use of the epithet by the 
boys, and the severe reprimand inflicted by the 
prophet, that that epithet contained in it something 
seriously offensive to the well regulated mind; and 
yet we find no less a man than St. Clement of 


294 Morals and Manners 


Alexandria denouncing the use of wigs as wrong and im- 
moral—in fact, he seriously questions whether certain 
ecclesiastical ceremonies might not be invalidated by 
the use of that comfortable and ornamental cover; 
and he puts the question, which I am entirely incom- 
petent to solve, whether, when the hand is imposed 
upon a head thus covered, the blessing falls upon the 
cover or the thing covered. 

The practice of coloring one’s hair, according to 
one’s own sense of artistic fancy, seems to be harmless 
enough; and yet Tertullian denounces the custom, as 
contravening the declaration that man cannot make 
one hair white or black of his own will. 

The practice that ladies indulged in many centuries 
ago, and which is now entirely past, of painting their 
faces white or red to suit the caprice of themselves 
or their admirers, that, too, was most vigorously de- 
nounced by saintly men. When a certain lady of 
fashion called upon Saint Leo, to ask his intercession 
for obtaining the cure of her ailing son, and appeared 
before him decked out with all the meretricious orna- 
ments of a fashionable dame, he rebuked her for pre- 
suming to interfere with the work of her Creator. 


Do you not think [he said] that the Creator of all things, 
that admirable Artist who made us all, will be justly 
offended that you should thus accuse Him of ignorance and 
incapacity; for you certainly would not put black paint 
and white and red upon your face, did you not think that 
it required it, and how can you entertain that belief with- 
out charging your Maker with being incompetent to fashion 
you properly? 


And it was only when she divested herself of all these 
gaudy allurements that he consented to her prayer. 


Morals and Manners 295 


Nothing can seem to us more innocent than the use 
of tooth-powder. But one Apuleius, having written 
a eulogy on tooth-powder, became conscious that he 
had engaged upon a very daring undertaking, and felt 
bound to defend himself by appealing to Nature, and 
insisted that she rather approved of that process,— 
to corroborate which, he cited the example of the 
crocodiles which leave the banks of the river Nile at 
certain stated periods, and open their mouth to a con- 
venient bird, which quietly proceeds with its beak to 
clean their teeth when they need it. Of course, this 
cogent argument of Apuleius fixes the question; and 
tooth-powder may be used without scruple by good 
people. 

But you must not think that it is only in olden times, 
and by Catholic saints, that these little matters of 
dress and fashion have been deemed serious and 
weighty matters of morals. If you will read even 
modern history, you will see that Protestant divines, 
too, have undertaken to regulate, though with no very 
marked success, the dresses and fashions and man- 
ners of the fairer sex. If you will look to the regula- 
tions drawn for the government of Geneva by the 
Calvinist clergy, or for the government of England by 
Archbishop Cranmer, or if you come down to the legis- 
lation of the Puritans and the Methodists, you will 
find this same subject of manners and morals so nicely 
intermixed that one word would cover them both. 
Even the Protestant clergy of France, in the time of 
Louis XIII., though but a small, insignificant minority, 
undertook to regulate these matters for the whole 
people. They looked upon dancing as a most ungodly 
amusement, and prescribed that dancing masters 
should be admonished by the spiritual power, and 


296 Morals and Manners 


desired to abandon their unchristian profession. They 
ordered that all persons should abstain from wearing 
gay apparel, and should arrange their hair with be- 
coming modesty. They forbade women to paint, and 
they declared that if, after their injunction, any woman 
persisted in painting she should not be allowed to 
receive the Sacrament. They ordered that no person 
should go to a ball or a masquerade, nor ought any 
Christian person to look at the tricks of the conjurer, 
or at the game of goblets, or at the puppet show, for 
all such amusements should be suppressed by the 
magistrates, because they excited curiosity, caused 
expense and a waste of time. They declared that the 
faithful must by no means let their hair grow long, 
lest by so doing they end them in luxurious and las- 
civious curls. Their garments must be made so as to 
avoid the new-fangled fashions of the world. They 
were to have no tassels to their dresses, their gloves 
must be without silk or ribbons, they were to abstain 
from fardingales, and especially were they warned 
against the monstrosity of wide sleeves.—(Buckle, 
VOL, 1., 413.) 

To illustrate how still further, in matters which would 
seem to belong exclusively to the domain of manners, 
morals often assert their claims with inflexible rigor, 
let me call your attention to the question of hats and 
bonnets. 

The propriety of removing one’s hat in the presence 
of ladies seems to be founded entirely upon an arbi- 
trary though well settled rule of social decorum; and 
though we may condemn the violator of that regulation 
as a boor, and recommend that he mend his manners, 
we would hardly feel justified in impeaching his morals; 
and yet, if the same omission takes place in a sacred 


Morals and Manners 297 


building, where the solemn mysteries of our religion 
are being celebrated, our moral sense is shocked and 
outraged. We are then likely to forget the mere 
question of manners in our indignation at what seems 
gross irreverence. On the other hand, a very respect- 
able and peculiarly amiable body of Christian people 
invariably retain their hats out of religious principle. 
Their founder happened to read in the Book of Daniel, 
i1., 20, that Shadrach, Meshach, and Abednego were 
cast into the furnace of burning fire with their coats, 
and their caps, and their shoes, and their garments. 
Impressed by this example, though perhaps with no 
very apparent logic, they have refused to uncover their 
heads since their attention was called to the important 
fact. As for the fairer portion of the human family, 
they are absolutely enjoined to cover their heads in 
churches; and it is wrong morally for them to remove 
as it is for us to retain our headgear in a building de- 
voted to divine service. If a conscientious Hebrew is 
called upon to take a solemn and binding oath, he re- 
tains his hat; but if a Christian calls the Almighty to 
witness the truth of his statement, he takes it off— 
both of them thus bearing witness that the relation of 
the head and its covering is one of great delicacy and 
hedged around with fine moral distinctions. 

There is perhaps no subject upon which we find 
fashion or manners and morals running together so 
closely, and none in which we find more strikingly 
exemplified the truth of what I have stated, viz., 
that the opinions upon these subjects change with 
time, place, and occasion, than in the matter of reli- 
gious persecution. We have all read of the persecu- 
tions of the Catholic Church; and it has been the 
fashion to claim that upon her alone rested the charge 


298 Morals and Manners 


of having persecuted men for mere conscience’ sake. 
I do not propose to-night to vindicate her from the 
accusation. That in bygone days she did seek to 
retain her rebellious children within her fold by 
threat of death and by sanctioning the infliction of 
cruel punishment, is true. Considering, as she did, 
that all that man could gain in this world was worth 
nothing if he lost his soul, she did seek to restrain 
heresy by fearful examples. That the means resorted 
to in those days were such as make us shudder with 
horror at present, cannot be denied. Exaggerated 
though the denunciations be of the English queen who 
earned for herself the name of “‘ Bloody Mary,” yet 
there is enough in the recital of the sufferings in- 
flicted by her in the name of her Church to fill us with 
regret. Vacillating and insincere as was the chief of 
her victims, we are apt to forget his faults when we see 
him expire at Smithfield. Surpassed in number, in 
magnitude, and atrocity as were her tortures of 
Protestants, by Elizabeth of Catholics, we view the 
executions committed under her reign for religion’s 
sake with horror. But when we make this admission, 
we have a right to say that both morals and manners 
then united to sanction religious persecution. That 
it was the order and fashion of the day; that no church 
that ever got a foothold in any land hesitated one 
instant to resort to it,is undeniable. When we see 
John Calvin instigating the murder of Servetus; when 
we see John Knox approving, if not taking part in, the 
assassination of Bishop Beaton; when we read of the 
horrors perpetrated for long years upon unoffending 
Catholics by the sovereigns of England, we have a 
right to say to those who, with exulting exaggeration, 
count the crimson drops on the white robes of 


Morals and Manners 299 


Mother Church, that it does not lie with them to re- 
proach her with cruelty. If none but those without 
reproach will cast the first stone, all must abstain. 

The old Church, we may add, had at least a fair ex- 
cuse and a plausible reason to assign for persecution ; 
and she alone of the countless sects that have under- 
taken to persecute those who dissented from their 
views can allege such excuse and such reason. 

And lest I may seem partial upon this subject, let 
me read to you a striking passage from an author who, 
unwilling as he may be to recognize the claims of the 
Catholic Church, is at least entitled to respect for 
his candor: 


Catholicism [he says] was an ancient church. 

She might point to the priceless blessings she had bestowed 
upon humanity: to the slavery she had destroyed; to the 
civilization she had founded; to the many generations she 
had led with honor to the grave. She might show how 
completely her doctrines were interwoven with the social 
system; how dreadful would be the convulsion if they 
were destroyed; and how absolutely incompatible they 
were with the acknowledgment of private judgment. 

But what shall we say of a Church that was but a thing of 
yesterday, a Church that had, as yet, no services to show, 
no claims upon the gratitude of mankind, a Church that 
was by profession a creature of private judgment, and was 
in reality generated by the intrigues of a corrupt court, 
which nevertheless suppressed by force a worship that 
multitudes deemed necessary for their salvation, and, by 
all her organs, with all her energies, persecuted those who 
clung to the religion of their fathers? What shall we say 
of a religion which comprised at most but a fourth part of 
the Christian world, which at the first application of pri- 
vate judgment shivered into countless sects, which was 
nevertheless so pervaded by the spirit of dogmatism that 


300 Morals and Manners 


each of these sects asserted its doctrines with the same 
confidence, and persecuted with the same unhesitating fu- 
riousness, as a Church that was venerable with the homage 
of more than twelve centuries? What shall we say of men 
who in the name of religious liberty deluged their land 
with blood, trampled on the very first principles of patri- 
otism, calling in strangers to their assistance, and openly 
rejoicing in the distress of their country, and who, when 
they at last attained their object, immediately established 
a religious tyranny as absolute as that which they had 
subverted. 

This was the attitude which, for more than a century, 
Protestantism uniformly presented; and so strong was 
its intolerance that for some time—I believe it to be 
truly said—there were more instances of partial toleration 
being advocated by Roman Catholics than by orthodox 
Protestants. 

Sir Thomas More, though he was himself a persecutor, 
at least admitted the abstract excellence of toleration and 
extolled it in the Utopia. 

L’H6pital and Lord Baltimore, the Catholic founder of 
Maryland, were the first two legislators who uniformly 
compelled religious liberty when in power. And Maryland 
continued the solitary refuge for the oppressed of every 
Christian sect, until the Puritans succeeded in subverting 
the Catholic rule, when they basely enacted the Penal 
Code against those who had so nobly and so generously 
received them. 


This statement comes not from a partial Catholic 
pen, but is uttered by a man who, I repeat, is no 
friend of the Catholic Church. 

So, too, as I suggested above, the French Huguenots 
have undertaken at times to dictate laws of morals 
and manners to the French people. And I can hardly 
dismiss the subject without one word as to those men 


Morals and Manners 301 


who constituted, at one time, the most turbulent race 
of fanatical demagogues that ever brought confusion 
upon any country or ruin upon themselves. 

No impartial man can read the early history of that 
politico-religious faction and deny the justice of this 
statement. 

To corroborate my assertion, I shall abstain from 
Catholic sources and from any reference to Catholic 
authors. And I unhesitatingly declare that in the his- 
tory of religious dissensions in modern times you will 
find nowhere so noble, generous, and magnanimous 
toleration on the one side, and such base and in- 
solent ingratitude on the other: 


The religion of France was, and always had been Catho- 
lic. An enormous majority of the people were Catholic. 
The traditions and fashions, habits and feelings were all 
Catholic; and yet we find a class of men, insignificant in 
numbers, as well as influence, taking advantage of the 
generous—I might almost say indiscreet—tolerance al- 
lowed them, to become rebels and traitors to their country, 
persecutors of those who had the power to persecute them, 
and finally so disturbing the peace of the whole nation, 
that they practically taught that toleration of themselves 
was impossible. 

It was stipulated in the edict of Nantes that the Protes- 
tants should enjoy the full exercise of their religion, and 
this right they continued to possess until the reign of 
Louis XIV. To this there were added several other privi- 
leges such as no Catholic Government except that of 
France would have granted to its heretical subjects. But 
these things did not satisfy the desires of the Protestant 
clergy. They were not content to exercise their own re- 
ligion unless they could also trouble the religion of others. 
They called upon the Government to limit the performance 
of those rites which the French Catholics had long revered 


302 Morals and Manners 


as emblems of the national faith. To this purpose, 
directly after the death of Henri IV. they held a great 
assembly at Saumur, in which they peremptorily demanded 
that no Catholic procession should be allowed in any town, 
or place, or castle occupied by the Protestants. As the 
Government did not seem inclined to countenance this 
monstrous proposition, these intolerant sectarians took the 
law into their own hands. They not only attacked the 
Catholic processions wherever they met them, but they 
subjected the priests to personal insults, and even endeav- 
ored to prevent them from administering the Sacrament 
to the sick. If a Catholic clergyman was engaged in bury- 
ing the dead, the Protestants were sure to be present in- 
terrupting the funeral, turning the ceremonies into ridicule, 
and attempting by their clamor to deaden the voice of the 
minister so that the service performed in the church 
should not be heard. Nor did they always confine them- 
selves even to such demonstrations as these. Certain 
towns having been perhaps imprudently placed under their 
control, they exercised their authority in them with the 
most wanton insolence. At La Rochelle, which from its 
importance was the second city in the Kingdom, they 
would not permit the Catholics to have even a single 
church in which to celebrate what for centuries had been 
the sole religion of France, and was still the religion of an 
enormous majority of Frenchmen. They ordered that in 
none of the Protestant towns should a sermon be preached 
by a Jesuit on any day, by any ecclesiastical person com- 
missioned by a Bishop. They forbade any Protestant 
even to be present at a baptism, or at a marriage, or at a 
funeral if the ceremony was performed by a Catholic priest. 
And as if to cut off all hope of reconciliation, they not only 
vehemently opposed those intermarriages between two 
parties by which in every Christian country religious ani- 
mosities have been softened, but they publicly declared 
that they would withhold the sacrament from any parents 
whose children were married into a Catholic family. 


Morals and Manners 303 


When Louis XIII., in 1620, visited Pau, he was not only 
treated with indignity as being a heretical prince, but he 
found that the Protestants had not left him a single church, 
—not one place in which the King of France, in his own 
territory, could perform those devotions which he deemed 
necessary for his future salvation. 

This [adds Mr. Buckle] was the way in which the French 
Protestants treated the first Catholic Government which 
abstained from persecuting them—the first which not only 
allowed them the free exercise of their religion but even 
advanced money to them. 


This is the language used by a non-Catholic his- 
torian, and testimony without end might be accumu- 
lated to show the truth of this statement. You will 
find in the books of the day that when, as frequently 
happened, Protestant converts returned to their 
Church, they were mildly designated ‘‘dogs returning 
to the vomit of popery,’ or gently admonished as 
“swine wallowing in the mire of idolatry,’ and thus 
was the majority stung into driving these noisy and 
intolerant men from the country. 

They had demonstrated that the beauty of re- 
ligious Christian toleration was lost upon them, and 
that all that they required in order to become cruel 
persecutors was power. 

If I have gone at some length into this subject it is 
because, living as we do in a country where religious 
persecution finds no place, we can well see how different 
is the standard of morals and manners in this particu- 
lar. Deeds that we would now look upon, whether 
Catholics or Protestants, with horror, were then re- 
garded not only as the natural dictates of earnest 
religious sentiment, but as acts of virtue and of mercy. 

If I say that the spirit of religious persecution has 


304 Morals and Manners 


almost died out from our modern society, I am not un- 
mindful of the relentless persecution inflicted at this 
moment upon good and venerable men for conscience’ 
sake in another land. But even there you will observe 
that it is not one religion seeking to exclude another, 
but it is the old fight between the state, claiming to be 
preéminent, absolute, all-powerful, and conscience, 
bearing and suffering everything to maintain its 
rights. The day is not far distant, I think, when the 
whole Christian world will recognize the fact that in 
the oppression of the Catholic Church now going on in 
Germany, the Catholic prelates who are suffering im- 
prisonment and indignity are the champions not only 
of the rights of that Church, but the asserters of the 
sanctity of the human conscience; and it will be 
recognized before long, I think, that it is not only the 
old mother Church that is assailed, but the war upon 
her is upon all who try to draw a line limiting the 
power of Caesar, and who venture to assert that while 
rendering unto Cesar what belongs to Cesar we should 
also render unto God what belongs to God. 

You may, perhaps, think from what I have hereto- 
fore said that it is only with the weightier subject of 
morals that the good men of bygone times have been 
concerned, and that mere outward politeness was a 
subject entirely beneath them. But this I can demon- 
strate is a great mistake, and I will briefly show you 
that even great saints have not disdained the lighter 
grace of courtesy. 

When St. Anthony was living in the desert, it was 
reported to him that there was a saint somewhere 
even greater than himself. It would seem from his 
action upon receiving that intimation that St. An- 
thony had not yet by vigils and by fasting, by solitude 


Morals and Manners 305 


and by privation, driven all human leaven out of his 
heart. He at once started to discover who that saint 
could be. As it would have been highly difficult upon 
the very slight intimation that he had received to find 
the person of whom he was in quest, he was very much 
pleased, no doubt, to meet a little man with horns and 
goat’s feet to point out the way to his destination. 
He followed his guide until he reached a cell occupied 
by St. Paul, a hermit. St. Paul had lived many years 
in saintly solitude, and fearing the contamination of 
the outer world, and not knowing the excellence of his 
visitor, at first refused to receive him. Being at last 
prevailed upon, he yielded to the impulse of curiosity, 
and asked him what there was going on in the world, 
whether there was much building in the towns, whether 
there were any idolaters still living, etc. While this 
colloquy was proceeding to the mutual satisfaction of 
both, a crow appeared which bore a loaf of bread in 
its beak; whereupon St. Paul at once observed that he 
had done quite well to admit his visitor, as was evi- 
denced by the fact that heretofore the bird had only 
carried half a loaf but on this occasion had produced 
a whole one, evidently meaning that the loaf should 
be shared by the visitor. 

The two pious men having given thanks sat down 
to share their repast, but a very serious difficulty at 
once arose. Who was to break the loaf before the 
other? St. Paul courteously insisted that his visitor 
should have the priority, according to the most familiar 
rules of elegant hospitality. St. Anthony, however, 
insisted, with proper deference, that St. Paul should 
commence, as St. Paul was then 113, and St. Anthony 
comparatively young (he was only go years old). So 
scrupulous was each to do justice to the other that 


306 Morals and Manners 


they discussed the matter the whole afternoon, until 
at last, as the shades of evening gathered about them, 
a happy inspiration released them from their dilemma, 
viz., that each should hold an end of the loaf and that 
they should pull together. This settled the matter 
to the satisfaction of both. Here, then, you observe 
an instance of scrupulous politeness, at a time, and on 
an occasion, and between men, where we might not 
expect dt. 

Although it is not exactly in point, I will finish this 
pious legend where it ought to end, by adding that St. 
Paul soon died, and his new friend, being anxious but 
unable to give him Christian burial, was greatly re- 
lieved by the appearance of two lions who, with their 
paws, dug a grave, deposited the body into it, and, 
having raised a howl of lamentation, prostrated them- 
selves before the surviving saint, asking him, as far as 
in their language they could ask him, for his blessing. 

There are other instances, too, of this gentle spirit 
of courtesy, the courtesy of the true kind, for it con- 
tains the element of charity. When St. Macarius was 
sick (we read in the history of the monks), some 
friendly visitor left him a bunch of grapes, but the 
saint, thinking more of others than of himself, gave it 
to another hermit, who in turn passed them to still 
another, and finally the same bunch of grapes, having 
made the circuit of the entire desert, was returned to 
St. Macarius. 

So, too, St. Avitus being on a visit to St. Martion, 
the latter saint placed bread before him and invited 
him to eat. But St. Avitus refused, averring his cus- 
tom never to taste food until after sunset. St. Mar- 
tion, however, insisted, and gave as an excuse that he 
was unable to defer his own repast and implored his 


Morals and Manners 307 


guest, for that once, to break his habit, and being 
refused, exclaimed, “Alas! I am filled with anguish 
that you have come here to see a wise man and a 
saint and you find a glutton!’”’ St. Avitus was then 
grieved, and said he would rather even eat flesh than 
hear such words, and he sat down as desired. St. 
Martion then declared that his custom was the same 
as that of his guest, ‘‘but,’’ he added, ‘‘we know that 
charity is better than fasting, for charity is enjoined 
by the Divine law, and fasting is left in our power and 
will.” 

How beautifully blended do we here find morals and 
manners! 

When St. Epiphanus, having invited St. Hilarion to 
his cell, placed before him a dish of fowl, “ Pardon 
me, father,’ said St. Hilarion, ‘but since I have be- 
come a monk I have never eaten flesh.”” ‘And I,” 
said St. Epiphanus, “since I have become a monk 
have never suffered the sun to go down upon my 
wrath.’”’ ‘Your rule,’’ replied the other, ‘is more 
excellent than mine.”’ 

These instances, I think, will serve to establish the 
truth of my assertion as to saintly courtesy. 

The practice of ejaculating a brief and courteous 
prayer when a person sneezes in our presence, although 
it has well-nigh died from among us, still prevails 
among the Latin races. With us, who are more 
practical than sentimental, the fact that our neighbor 
sneezes merely suggests cold in the head and suitable 
remedies to cure the affliction. But when the subject 
is considered in all its bearings it becomes quite re- 
spectable, I may say classical and venerable. Few 
men and women sneeze with a full appreciation of 
the importance of the act. Some writers, seeking to 


308 Morals and Manners 


explain the practice of saluting, go back to the time of 
Gregory the Great, and show that during his pontifi- 
cate an epidemic prevailed which proved deadly to all 
who sneezed. This, however, falls far short of the 
justice due the ancient custom, for Pope Gregory only 
lived some 1200 years ago, and we read that as far 
back as the Roman emperor Tiberius this pious and 
courteous practice was generally observed and no man 
of self-respect and well informed as to the morals and 
manners of the day would have failed to ejaculate 
“Jupiter,” or ‘‘ Jove,’’ when his friend or even himself 
sneezed. We have a proof of this in an old Greek 
epigram which is translated thus: 


Proclus with his hand his nose can never wipe— 
His hand too little is his nose to gripe. 

He sneezing calls not Jove, because’ he hears 
Himself not sneeze, the sound’s far from his ears. 


Antique as this makes the practice, the rabbinical 
accounts invest it with even greater age. They say 
that sneezing was a mortal sign even from the first 
man until it was taken off by the earnest supplication 
of Jacob, and from that time, as a special acknowledg- 
ment, was continued on all occasions of sneezing. 

Nor was the practice of sneezing, or, as Sir Thomas 
Browne more elegantly denominates it, the ‘‘custom of 
sternutation,” merely an occasion of polite or religious 
demonstration. It also conveyed very solemn warn- 
ings if we are to believe ancient histories. As far back 
as the times of Homer, who died so long ago that 
learned men are now uncertain whether or not he was 
ever born, an Athenian captain would have retired 
from battle because his boatman sneezed, while it is 
said that in those ancient days men were wont to go 


Morals and Manners 309 


to bed again if they sneezed while they put on their 
shoe. So Aristotle demonstrates that sneezing from 
noon unto midnight was very good, but from night to 
noon unlucky, while another Greek writer observes 
that sneezing to the left hand was unlucky, but pros- 
perous unto the right. All of which shows that no 
man of well-balanced mind should sneeze lightly, 
and without a careful inspection of the surrounding 
circumstances. 

Before closing I desire to call your attention to the 
subject of duelling. Nothing, I think, can more 
forcibly illustrate what I have sought to prove than 
the consideration of this matter of private combat. 
One of the most serious offences known to our law is 
that of duelling. The penalties inflicted by the code 
of all Anglo-Saxon countries are of the severest kind. 
To slay a man in a duel is akin to deliberate murder. 
The stain of shedding a brother’s blood without justi- 
fication can only be atoned for by the severest ex- 
piation. Public opinion in this country has become 
utterly intolerant of this barbarous and illogical mode 
of settling differences, even when the parties call 
themselves gentlemen! And yet if we go back to the 
origin of the practice we find that it sprang from a 
deep sense of religious sentiment. Not only the man- 
ners but the morals of the past sanctioned—I may say 
sanctified—the practice. The Church itself looked 
with favor upon this mode of adjusting variances and 
of righting the oppressed, while the laws then pro- 
vided for and regulated this mode of bringing and 
trying suits. It was supposed that the innocent man 
could not fail to receive the aid of the Almighty, and 
who could withstand Him? What test could be 
surer, safer, and more expeditious, when men not only 


310 Morals and Manners 


possessed full confidence in the justice of God, but un- 
hesitatingly assumed that they could at their will call 
Him to interfere in their quarrels in a manner and at 
a time of their own choosing? Faith in this divine aid 
might well give the one more than human courage and 
strength and might well dismay the other. But in 
time men found that they could not summon Him from 
His throne at their call, and that He chose His own 
good time and His own means of visiting the guilty 
with punishment. That the innocent frequently fell 
was, in time, discovered, and the Church, long before 
secular laws interfered to prevent what had become a 
barbarous and murderous practice, put her veto upon 
duelling as a mode of administering justice. Even 
Blackstone says (and he is no friend of the Church), 
“To give it its due praise, we find the canon law very 
early declaring against trial by battel [ordeal] as being 
the fabric of the devil and as against the divine pre- 
cept ‘Thou shalt not tempt the Lord thy God.’ ”’ 

From that time it became bad in morals, though it 
remained good in manners, to engage in single combat, 
often for the most trifling causes. Of late years only 
has the code of manners contained a provision to the 
contrary effect, and as morals and manners firmly 
united to sanction, so they are now both allied to con- 
demn a bloody and senseless method of settling dis- 
putes, or a cowardly device for punishing a less skillful 
enemy. 

And yet the traces of the old practice are still found 
in modern morals and manners. In France, for in- 
stance, the custom prevailed that villeins, as all of low 
birth were called, should fight with uncovered face, 
while the men of gentle blood wore a visor down. 
Hence only villeins could be struck on the face, and 


Morals and Manners 311 


hence to strike a man on the face was to treat him 
as a villein and inflict on him a very gross outrage. 
The traces of this distinction are still seen in the feel- 
ing that a blow on the cheek is an insult of peculiar 
indignity. 

So, too, the villeins fought with a stick or staff; 
hence to strike a man with a cane was to treat him as 
a villein, another form of aggravated injury, which 
ordinary methods of retaliation were insufficient to 
punish. 

But to us, the most singular fact connected with 
this ancient method of conducting law suits is that, 
after the old law that allowed and provided for trial 
by ‘‘battel’”’ had slept uninterruptedly on the statute 
books for many centuries, within the memory of many 
now living, a defendant, on being sued in England, 
boldly flung down his glove before a solemn English 
court and defied his adversary to single combat—a 
summary and inexpensive, though unusual, method of 
getting at the facts—and the greatest judges of Eng- 
land were compelled to acknowledge that the law 
never having been abrogated was still the law, that 
the party was entitled to his ‘“‘battel,” and that they 
were powerless to deprive him of his right. 

Fortunately for the cause of both morals and man- 
ners, the fiery litigant was prevailed upon to conform 
to modern notions, and the judges lost the spectacle 
which, from their opinion, I feel bound to say, they 
seemed rather anxious to enjoy. 

But if the practice of duelling is now condemned by 
morality and dying out of our manners, there are cer- 
tain races of men among whom the love for that 
dangerous exercise still exists. In Latin countries the 
most stringent laws have been passed on the subject 


312 Morals and Manners 


without success. In Ireland, where duelling was long 
the most delightful of pastimes, severe legislation has 
but partially succeeded. An Irish judge within a few 
years past reflected the feelings of many when he said 
to the jury: ‘“‘I am bound by law to charge you that 
such a practice is highly criminal, but I also feel bound 
to add that I never saw a fairer jooel in my life!”’ 

The changed condition of woman in the social and 
domestic world forcibly exemplifies my statement as 
to the variable standard of morals and manners. From 
a state of comparative slavery, and oftentimes of ab- 
solute degradation, she has been raised to a condition 
of dignity and honor. The laws of modern times have 
been altered with a view to her protection and benefit. 
She may compete with the inferior being who is sar- 
castically denominated her lord and master, in nearly 
all the walks of life—art, science, literature, the 
learned professions—and beat him in all. She may 
receive and retain the fruits of her earnings, and the 
law, no longer taking them from her to enrich or sup- 
port the lazy, idle, or vagabond husband, jealously 
watches his interference. It compels him to maintain 
her or go to jail. It allows, nay, encourages her, in 
living on his substance, and keeping her own. So far 
does this kind and generous legislation proceed in the 
direction of protecting the woman that she is allowed 
the utmost latitude in oppressing her husband, who 
may well wonder at times if he has rights that she is 
bound to respect. She may acquire and own property 
without let or hindrance. She may create debts as 
freely as she likes, but when it comes to payment she 
has but mildly to suggest that she is a married woman 
and does n’t care to pay, and of a sudden her married 
condition is one of priceless value. If the unfortunate 


Morals and Manners 313 


creditor does succeed, after years of expensive litiga- 
tion, to compel payment, she is justly indignant at the 
iniquity thus heaped on a defenceless woman, and 
clamors for more equal laws. I know that it is but a 
few years since an English judge, who was no doubt 
born and bred somewhere in the middle ages, decided 
that a British husband still possessed the right to in- 
flict corporal chastisement on his wife; he cautiously 
added, ‘““He must not use a stick larger than his 
finger.”’ The British nation, naturally anxious to 
ascertain the precise limits within which marital ex- 
postulation might be exercised, addressed him a polite 
note inquiring the precise size of the judicial finger. 
That question he was not, I think, able to answer with 
mathematical accuracy, and there the matter rests in 
Great Britain. But here, I may proudly say, she is 
not troubled with any such nice discrimination. If 
he beats her, she sends him to prison, and makes him 
support her in the meanwhile. If she beats him, and 
he goes to law, the verdict is “served him right” for 
being a brute. And finally, if she gets tired of his 
company and has no special cause to allege against 
him, she goes west, at his expense, of course, and gets 
a divorce. In fact, I may safely say that no prudent 
man who cares for his wife would allow her to go west 
without him. 

So complete is the change in the respective relations 
of the parties to the marriage contract that we may 
reasonably expect to see at no very distant day laws 
enacted for the more effectual protection of the person, 
property, and rights of married men. This, too, will 
very forcibly illustrate, when it does occur, the change- 
able standard of morals and manners. 

I ought not to close without a reference at least to 


314 Morals and Manners 


that curious institution wherein the morals and man- 
ners of a bygone age seem so strangely blended. I 
speak of chivalry, in which we can observe the germs 
of our modern civilization struggling for life. How 
strange it all seems! What a mixture of fable and 
reality, of the sublime and the grotesque! What a 
brilliant though unreal pageant ‘‘Orlando the Furi- 
ous”’ striking off the heads and limbs of his foes, so 
that they fall about him like rain; ‘Richard the 
Lion-hearted’”’ dealing those ponderous blows that 
still ring through ages in our ears; Bayard, the 
knight without fear and without reproach, and more 
real and loveable than all, the good, dear knight of 
La Mancha. How we follow him through his wondrous 
adventures, his fearful contest with the windmill and 
desperate onslaught on the flocks of sheep, until the 
end approaches, and, the clouds that obscure his mind 
being lifted by the hand of approaching death, he lies 
down forever—he and the old poetry dying together! 


Lack-a-day, dear sir [cried honest Sancho, blubbering, 
as his master began to settle his affairs], do not die—take 
my advice and live many years upon the face of the earth, 
for the greatest madness a man can be guilty of in this life 
is to let himself die outright, without being slain by any 
person whatever or destroyed by any other weapon than 
the hands of melancholy. 


But the brave knight was not to be moved by such 
arguments. ‘‘Gentlemen,’”’ he said to his squire and 
those about him, “let us proceed fair and softly, with- 
out looking for this year’s birds in last year’s nests. I 
was mad, but now am in my right senses. I was Don 
Quixote de la Mancha, but now I am Alonzo Quixmo, 
the Good.”’ And having dictated his will he died, 


Morals and Manners 315 


so wisely and bravely that his biographer might truly 
say 

That in his life tho’ counted mad, 

He in his perfect senses died. 


Nevertheless, says that same biographer, his niece 
ate her victuals, the housekeeper drank to the repose 
of his soul, and even Sancho cherished his little car- 
case, for, he wisely adds, the prospect of succession 
moderates that affliction which an heir ought to feel 
at the death of the testator. From all which I infer 
that there are certain respects in which manners and 
morals do not change. 

And now I must close, with the hope that I have not 
quite failed to show you that morals and manners are 
so closely allied, in nature and by tradition, that you 
can hardly disregard the one without offending the 
other. They are both near relatives of charity, out- 
side of whose gentle influence they both lose their true 
character and real virtue, so that, rightly understood, 
the precept is well worth keeping, whether you follow 
King James or adopt Archbishop Kenrick—the safer 
way, if I may offer counsel, being to follow them both. 





HY Od O Oe = ° = e, 
re ADA 6 7D SS 


2 ot 
0 





XV 


LYING AS A FINE ART! 


excellent institution which has done me the 

honor to invite me here to-night, to begin with 
the positive assurance that the Catholic Union is not, 
in any sense, a society for the protection or encourage- 
ment of the fine arts in general, or of the art to which 
I allude, in particular. 

Indeed, after examining its constitution and in- 
vestigating the fundamental principles of its organiza- 
tion, I think I may truthfully say that it is of the 
reverse order, and that the faithful accomplishment 
of its objects will very greatly tend to the destruction 
of that art of which I am to speak this evening. Its 
chief object is the inculcation and protection of sound 
Catholic principles, and I need hardly say to this 
audience that at the bottom of this is the inculcation 
of truth. 

I have been incited to adopt this title for my lecture 
this evening, not only because after some reflection I 
have thought that it sounded well, but because a very 
celebrated writer whose genius was equalled, and per- 
haps marred, by his eccentricities, once wrote an 


P exces it may be no more than justice to the 


1 An address at Cooper Union under the auspices of the ‘‘Catholic 
Union.” —1873. 


316 


Lying as a Fine Art 317 


essay which he entitled “Murder as a Fine Art’’; and 
it has occurred to me that, considered from an esthetic 
or artistic point of view, if the art of destroying our 
neighbor’s life is entitled to particular mention and 
even a qualified sort of admiration when it is ac- 
companied with pre-eminent skill, much more so the 
art of lying, for, after all, the murderer can only take 
away that which must eventually and certainly be 
lost. He anticipates the destroying effect of time by 
a few days or months or years. All that he is able to 
do is to send his brother to his grave at an earlier 
moment than Nature intended. But he who deals in 
lies has a much wider field and a much grander scope 
for the exercise of his abilities. Not only a human 
life can he take away, but he may destroy character, 
fame, reputation, glory, happiness. He may ruin em- 
pires. He may subvert the peace of kingdoms. He 
may shake the foundations of the best and noblest 
institutions. He may sow the seeds of the most wide- 
spread calamity and wretchedness. And when we 
consider the extent to which he may carry his powers 
of destruction, if he sets artistically and earnestly to 
work, we can only exclaim with an inspired writer: 
“Behold how great a matter a little fire kindleth.”’ 
And then, too, the author to whom I have just 
alluded, and who has viewed Murder as a fine art, 
speaks with glowing admiration of the various forms 
which that art has assumed. How much more varied 
and attractive and wonderfully ingenious are the 
shapes which the father of lies has been able to give 
to his pet productions! He may call to his assistance 
resources which none but he can command, and which 
even he can only command when he starts the lie upon 
its mission. All the arts that are known to men will 


318 Lying as a Fine Art 


act as handmaids to assist in perfecting the work. 
Monuments of stone, tablets of brass, the poet’s fancy, 
the historian’s skill, the painter’s cunning, and the 
sculptor’s genius will all come forward when sum- 
moned. Nay, even the solemn legislator, the great 
potentate, and the grave philosopher—they, too, at 
his bidding, spring forward to embellish, adorn, and 
make imperishable the lie. 

It is true that murder, considered purely as I have 
represented it, may boast of its great antiquity. The 
world was still young and fresh from the hands of its 
Maker when the first murderer shed his brother’s 
blood. But even before that the pure air of the 
earthly paradise had been polluted by a le. Before 
that the great master, nay, the very father of hes, 
first gave an instance of his power. It was in that 
fair garden that he deceived the first woman, and that 
she misled the first man. But upon this picture I do 
not propose to dwell, and I only mention it to show 
the great antiquity of this oldest of the arts. It is not 
a pleasant picture to dwell upon, for, after all, the 
noblest of us look to this woman and this man as our 
ancestors, and if we owe them nothing else, we owe 
them what good Sir Thomas Browne held that we owe 
to the pope, “‘at least the duty of good language.”’ 

The lesson taught in the smiling garden of Eden was 
not taught in vain. It continued to find imitators and 
admirers, and to spread over the world, until the dis- 
ciples and students became so numerous that the 
prophet king was constrained to exclaim, ‘‘ All men are 
liars.’’ And many centuries later, we find that one of 
the greatest of the apostles, speaking of the inhabitants 
of a certain island, and lamenting the condition into 
which they had fallen, exclaimed, ‘‘ They are all liars.” 


Lying as a Fine Art 319 


It is true that this allegation is less sweeping than the 
other, for he spoke of one little insignificant island and 
did not embrace the whole universe in his statement. 
Whatever comfort or consolation there may be in that 
reflection you are welcome to. He did not state that 
the inhabitants of all islands were liars, nor did he say 
they were not. 

Before proceeding any farther with the discussion of 
my subject, it is well to ascertain precisely what we 
mean when we talk of a lie. The common idea is that 
a lie is an intentionally false statement. J am hardly 
willing to accept this definition. It is popularly cor- 
rect, but like many other popular definitions it is 
neither morally nor theologically true. If any false 
statement, intentionally false, be a le, then we have 
some very respectable members of a disreputable 
family. We have the heroic lie, the charitable le, the 
social lie, and many others that certainly rebel at the 
paternity that is assigned to them. But whether they 
are entitled to the name or not, they do not reach that 
point of artistic excellence which entitles them to much 
consideration at my hands to-night. They are at 
best the mere manifestation of the art in its most 
rudimentary condition. They are dictated often by 
loving friendship, social necessity, and kindly feeling. 
They lack the true smack of genius. They do not bear 
the signature of the king and prince of liars. They 
are not tainted with some selfish hope or selfish fear, 
or at least some desire and expectation of doing an in- 
jury or an injustice, and theologians and moralists 
concur in saying that the very essence of a lie is in- 
justice. It may be well, however, to give you an 
instance of the Heroic Lie, if we must so call it. I 
select one of the few that have come down to us. 


320 Lying as a Fine Art 


It was in the bloody days of the French Revolution. 
Under pretence of sweeping away all shams and 
hypocrisy the great artist in the department of false- 
hood had taken things in his own hand and had 
started an army of lies which kept on multiplying and 
increasing each day that it lived. Then, indeed, the 
admirers of artistic murder and artistic falsehood 
might well be satisfied. Hand in hand they walked the 
fair land of France, and for a time held undisputed 
sway. They were not more numerous, perhaps, than 
their predecessors, but their giants took the place of 
pygmies. A father and son were arrested upon some 
charge—charges were easily made, were easily proved, 
and more easily punished. They were to defend 
themselves before one of the sanguinary tribunals 
whose judgment almost always ended in death. The 
son, perhaps by a refinement of cruelty, was tried the 
first. His doom was soon fixed, and the court ad- 
journed in the evening with the usual formalities re- 
quiring that he should be executed the next morning. 
The father’s trial was postponed, perhaps through in- 
difference, or more probably that the judges might 
dine. It may be in order that he might suffer a worse 
punishment than death—that of being present at the 
execution of his boy. They passed their last night 
together in loving conversation, and towards dawn, 
but a few moments before the fatal cart arrived, the 
son fell asleep. His name was soon called, and the 
father answered, ‘‘It is I; here I am,” and stealthily 
leaving his sleeping son he was taken off to execution, 
the last word upon his lips being a lie—if, indeed, I 
repeat, that falsehood which I class among the heroic 
lies be entitled to that designation. He was executed 
and his son lived many years to tell the story with 


Lying as a Fine Art 321 


moistened eyes; and the father’s memory lives em- 
balmed in that falsehood. 

I have cited this as an instance of what I would not 
consider an artistic specimen of prevarication. If 
there was any sin in that falsehood, we can only hope 
that, like ‘‘Uncle Toby’s oath,’ the recording angel, 
as he wrote it, blotted it out with a tear. But I have 
no hesitation in giving such an instance as this, nay, in 
holding it out for admiration as an example; for if 
only those will depart from truth whose mendacity is 
directed to saving the lives of others at the expense of 
their own, then, indeed, will the race soon die out, and 
all reproach upon the practitioners of the art be ab- 
sorbed in admiration and gratitude. It will soon be 
added to the catalogue of the lost arts. 

The falsehood that I speak of as an artistic one 
must be accompanied, as I have suggested, by treach- 
ery, cowardice, injustice, blasphemy, or selfishness, and 
these must be beautified and exalted by the hues and 
colors of truth. 

They must as far as possible be attended by plausible 
circumstances, eloquence of statement, and reasonable 
probability. They must be adapted to the hearer, 
to the time, to the place; and when these concur, then 
does the lie deserve to be ranked among the fine speci- 
mens of the art. If some, at least, of these elements 
are not contained in the subject that may be ex- 
amined, you have an instance of vulgar mendacity, 
but nothing that belongs to that group of exquisite 
productions that have been numerous in every age, 
but which have never been so common as since they 
enlisted as their handmaid the accessories of printing 
presses and electric wires. 

I ought, perhaps, to explain, in connection with this, 


322 Lying as a Fine Art 


that I do not mean that all great liars have given a 
careful attention or study to the subject. Some men 
attain greatness and pre-eminence by labor, by years, 
perhaps, of toil, and by constant practice, whereas the 
real artist and child of genius at one jump reaches the 
very pinnacle. Many men are born great in this branch 
of art as in others. Their unaided efforts have ap- 
peared wonderful at times, and as it has finally been 
discovered that absolute license to lie is not unac- 
companied with danger to society, scientific men have 
come forward, have diagnosed it, have recognized it, 
classed it, and labelled it, and called it ‘‘ pseudo- 
mama.’ This mania, like many others, is apt to ex- 
ist only in a certain class of cases. Where it affects 
Dives in purple and fine linen the scientific man or 
accomplished physician is called in, and with a very 
serious air, befitting so solemn an occasion, he pro- 
nounces his patient in need of treatment. But if 
Lazarus in his rags is afflicted with the same dis- 
temper, science can do nothing for him except to send 
him to the penitentiary and the workhouse whenever 
his mendacious disposition assumes a practical form, 
to the detriment of his neighbor. The same disease, 
you will see, requires a physician or a policeman ac- 
cording to the circumstances of the patient. 

I would not encourage any man, however, even if 
he has the means to employ the best medical skill, 
to indulge his fancy in unlimited fabrication. For 
it has been discovered that scientific indulgence in 
this particular might possibly be injurious to the best 
interests of the community. And I observe that the 
most recent and most esteemed works upon this sub- 
ject suggest that although there is undoubtedly such 
a disease as pseudomania, or an irresistible propensity 


Lying as a Fine Art 323 


to lie, it can be cured by a judicious application of the 
rod, and a more or less extensive term of imprison- 
ment.—(Wharton & Stillé, Medical Furisprudence.) 

Dr. Rush, among others, traces the origin of this 
mental disorder to voluntary adoption, but this, he 
thinks, may be cured. ‘“‘ Lying,” he says, “is generally 
the result of a defective education. It is voluntary in 
childhood, and becomes involuntary, like certain mus- 
cular actions, from habit. The only remedy is bodily 
pain, inflicted by the rod, confinement or abstinence 
from food. It would be a mistake to suppose that 
even when it has become an involuntary and almost 
uncontrollable habit falsehood brings with it no re- 
sponsibility. The law will not permit an habitual 
lar to say that he got goods by false pretences because 
he cannot help lying, or that he deceived his neighbor 
in any other way because the nature of his disorder 
was such that he was incapacitated from telling the 
truth; but it wisely declares that if a man is habitually 
false this habit is only viewed as aggravating his 
guilt, so that after all, the lucubrations of wise and 
learned men are much less injurious in this direction 
than might at first sight be supposed. 

If the time and occasion allowed, it might here be 
interesting to stop and inquire how far a taste for lying 
is a natural or an acquired one. 

Jeremy Bentham, a philosopher of great celebrity, 
holds that it is easier for men to speak the truth, and 
therefore they are more inclined to do so than to utter 
falsehood. Carlyle is of the same opinion, and says 
that ““man everywhere is the born enemy of lies.” 

How far this may be true I do not care to investigate, 
nor will I express an opinion on the subject. It is 
flattering to our fallen nature to believe that we are 


324 Lying as a Fine Art 


born only with good and honest instincts, and that the 
natural condition of our moral being is that of recti- 
tude; but while admitting this, if you please, in 
theory, it is safe to proceed upon the opposite as- 
sumption in practice. I fear that if the children 
about us are allowed to follow the instincts of their 
nature, without a judicious care to instruct them in 
the higher duties they are called on to perform, their 
natural propensities to virtue will soon disappear. 
That virtue will be rewarded, that vice will be punished, 
that crime cannot escape retribution, are maxims 
which it were well to instill into their youthful minds, 
even before they learn the rule of three. I think that 
I have not seen exceptionally bad cases of infantine 
human nature but it always seemed to me that it came 
naturally to the average boy to rob the neighboring 
orchard, or even invade the sacred precincts of his 
neighbor’s henroost, and that he only discovered the 
enormity of the offense and the virtue of abstinence 
when a judicious application of the usual instrument 
of torture inculcated the lesson. 

It is particularly when we study what is called his- 
tory, or the narration of past events, that we find the 
art of lying assuming its most beautiful and artistic 
development. Indeed it has become a very serious 
question of late with students of history whether the 
presumption was not rather against any historical 
statement than in its favor; and I am inclined to be- 
lieve that if a balance could be struck between what 
we absolutely know to be false of the statements of 
history and what we believe to be true, the balance 
would be very greatly on the side of falsehood. 

It was perhaps a bit of irony on the part of the 
ancients to present the Muse of history as a woman; 


Lying as a Fine Art 325 


but whatever may be the sex of the divinity that pre- 
sides over historical narratives, it is certainly true that 
with him, or her, or it, truth is stranger than fiction. 
I need hardly say that I omit from this rather sweep- 
ing assertion the books of Holy Writ, but I think I 
may, without irreverence, cite them in my favor to 
prove the unreliability of any human testimony. A 
quaint and learned author says that, man being de- 
luded before the flood, it is no wonder the conceptions 
of our first parents were deceitful, and they could 
scarce speak without error; and he makes the very 
remarkable statement (which he himself says that no 
man that he knows ever has observed) that in the 
recital of the Scripture before the flood there is but one 
speech delivered by man wherein there is not an error, 
or, as he terms it, erroneous conception—one, too, he 
adds, strictly examined, most heinously injurious to 
truth. The pen of Moses, he says, is brief in the ac- 
count before the flood, and his speeches recorded are 
but six. These six, on examination, are found to con- 
tain either a gross mistake or a very unsatisfactory 
reply, or impious error, or open impudence, as in the 
speech of Cain, where, upon the demand of God, 
“Where is thy brother?’’ he answered, ‘‘I know not’’; 
superadding to the guilt of falsehood the folly of re- 
turning a lie unto his Maker, thereby denying the 
omniscient power of God from whom nothing can be 
concealed. But I will not dwell upon this very inter- 
esting subject, preferring to refer you to the work 
itself: Sir Thomas Browne’s Vulgar and Common 
Errors. It is full of learning, full of interest, and of 
what the author, with great clearness, terms ‘illus- 
trative argumentation to induce their enthymemes 
upon the people.” 


326 Lying as a Fine Art 


I shall not undertake to explain what ‘“‘inducing en- 
thymemes’’ may mean. In the first place, because you 
may happen to understand the expression, and then 
explanation would be superfluous; and in the second 
place, because I do not quite understand it myself. 

The difficulty of illustrating my broad statement as 
to the mendacity of history consists not so much in 
the scarcity as in the over-abundance of my material, 
and it would be sufficient for me to open almost any 
historical work at almost any page and say to you, 
“This story is untrue.”” Sir Robert Walpole, on a 
certain occasion, when his secretary proposed to read 
to him some work on history, refused, saying that he 
preferred hearing something that was true, whereas 
history he knew to be false. Herodotus, who has been 
called the father of history, has also been denounced as 
the father of lies, and yet Macaulay considers him one 
of the most reliable and truthful of ancient historians. 
Indeed, if I were called upon to name, without further 
preparation, one single important historical narrative 
which I can accept as truthful, I know of none that I 
could cite with entire and absolute confidence except 
that dramatic, moral, and patriotic history which 
represents the illustrious father of his country in the 
act of freely admitting to his angry father that he had 
destroyed one of his choicest cherry trees with his 
hatchet. It would be almost treason, which the Eng- 
lish law declares to be the sum of all villanies, to deny 
the exact truth of this narration, and therefore I am 
quite willing to let it stand, not only as an illustrious 
instance of truthtelling in high places, but also as an 
exception to the rule which I have laid down, of gener- 
al historical inaccuracy. I confess that so far as 
the moral of the story goes it seems to me to be an 


Lying as a Fine Art 327 


extremely bad one, and I have always considered that 
the lesson sought to be inculcated had entirely failed 
of its object. It seems to be assumed that the absence 
of lying in a boy is most meritorious, and that the fact 
that a child failed to tell a gross, patent, flagrant 
falsehood to his father was one of those heroic and 
meritorious actions which could only be rewarded with 
the presidency of the United States. This seems to 
me very much as though a child were to be lauded— 
extravagantly lauded—because with filial devotion he 
abstained from killing his grandmother, or blowing 
up his grandfather with nitro-glycerine; both which 
things it would be undeniably wrong to do, but ab- 
stinence from which does not seem to me to entitle 
the youthful practitioner in the ways of virtue to 
special mention or distinction. 

I will now endeavor to select a few of these his- 
torical fallacies which have been so carefully prepared 
or so delicately nurtured, fostered, and finished as to en- 
title them to a prominent place in the gallery of the art. 

Among all the fictions that history has narrated to 
an eager and credulous public, there is no class which 
unites, to the same degree, all the elements of splendid 
and masterly mendacity as that which we might call 
the anti-church or anti-papal lie. We find instances 
of this in every shape—in portly volumes, in magnifi- 
cent monuments, in sober laws, or in venomous pam- 
phlets. Take, for instance, the monument that is 
known to many here present, called the London Monu- 
ment—a column in the city of London which has ex- 
isted some two hundred years, and which bears these 
words: 

This monument is erected in memory of the burning of 
the Protestant City by the Popish faction in September, 


328 Lying as a Fine Art 


A.D. 1666, for the destruction of the Protestant rule and of 
old English liberty, and for the introduction of popery and 
slavery, but the fury of the papists is not yet satisfied. 


That monument still stands. It was torn down 
during the reign of James II., but his successor, 
William, restored it. 

That the statement is a lie, historically speaking, 
that the expression with which it closes is not only a 
lie but a gratuitous insult to many faithful British 
subjects, no one denies. That the so-called popish 
faction had nothing whatever to do with the terrible 
calamity that visited London at that time, all are 
ready to admit; yet the monument still stands, and, 
as Pope expressed it, 


Like some tall bully lifts its head and lies. 


Burnet, it is true, the English bishop, says that 
Hubert, a French papist, confessed that he began the 
fire; but it turns out, and is admitted by Protestant 
historians, that Hubert was not a papist at all. This, 
however, is a matter of very little consequence. Mr. 
Hubert, or Monsieur Hubert, may have called himself 
what he liked. If he undertook to destroy the city of 
London he was no Catholic and a very bad Protestant, 
or let us more charitably suppose a poor maniac, whose 
mortal malady entitled him to compassionate incar- 
ceration. I leave this, however, as a good instance of 
the historical and monumental lie combined into one. 

So, too, there is the twin brother of this wicked 
fiction—not only the historical and monumental com- 
bined, but a little savor of blasphemy added. And 
this is the prayer for the 5th of November in the Eng- 
lish Prayer Book, wherein good people who read and 


Lying as a Fine Art 329 


pray from that book are taught to call all Catholics 
indiscriminately their blood-thirsty enemies, and to 
invite the vengeance of Heaven upon them for the 
attempted perpetration of a crime denounced by their 
faith, condemned by their Church, and abhorrent to 
their loyalty. 

Before leaving the subject of the monumental lie, 
I might adduce many instances in ancient and modern 
times of tall and stately monuments that record the 
benefactions of great and good men, who were neither 
great nor good; and I might even allude to the com- 
mon inscriptions upon the headstones of the departed, 
on which so many virtues are ascribed to those who 
have gone before, in which it so uniformly appears 
that the dead were all good and virtuous, that we 
must think either with a sense of discouragement that 
human nature has sadly changed since they fell 
asleep, or else we must believe that our proneness to 
fallacy invades even the sanctuary of the dead and 
writes a falsehood upon their last resting-place. But 
it is pleasanter to attribute this to a more creditable 
part of our nature—a tenderness which, after death 
has put its seal upon the life of those we love, only 
remembers the kindly and gentle virtues and leaves 
their failings, if they had any, to them and to their 
Judge. 

A very neat illustration of the anti-papal lie is to be 
found in the story of Pope John VIII. If you will 
examine works published say half a century ago you 
will find it gravely stated that this pope, who died in 
the year 854 (Mosheim), was not what he professed to 
be, a man, but that he was in fact a woman. I can 
hardly say that this fiction originated as a lie, for at 
the time that it was first started there was but one 


330 Lying as a Fine Art 


Church, and there is no special reason for believing 
that the originator of this fiction undertook to bring 
any particular discredit upon his faith. In after 
times, however, this story was eagerly seized upon, 
enlarged, embellished, revamped, and reframed, until 
it became an extremely beautiful specimen of the art. 
I am not sure that even now you may not find some 
pious and harmless lunatic as fully satisfied that Pope 
John was not John at all, but Joan, as of any other 
well-established fact in the anti-popery catalogue. 

Perhaps there may be seen nothing at all discredit- 
able to the papal office, at least to those who are taught 
to see in woman the purest and best part of human 
nature, in the supposition that a woman ever filled that 
chair. But the Church, following the direction and 
advice of the great apostle whom I have already cited, 
has always been extremely reluctant to permit even 
the best of women to speak in Church. And it must 
have been manifest that a very serious blow would be 
dealt at the papal institution if it could be shown that 
a woman had ever occupied the papal throne. 

As the strength of a chain is the strength of its weak- 
est link and no more, so the glorious boast of an un- 
broken succession would be forever lost. This may 
account for the protracted existence of the Pope Joan 
fiction. 

When we consider, however, the difficulties under 
which the historian labors in the performance of his 
duty, we must extend to him a large amount of charity. 
Not only must he or should he contend against and set 
aside his own prejudice, feelings, and opinions, moral, 
religious, and political, but he must bring the im- 
partiality of a judge to bear upon the selection of his 
material. 


Lying as a Fine Art 331 


When a long period of time has gone by since the 
occurrence of the important event he seeks to trace, 
and the atmosphere in which he writes is compara- 
tively freed from the prejudices of the hour, his task 
may to some extent appear comparatively easy; but 
this facility to get at the real truth by a dispassionate 
examination of all authorities that he may have at 
hand is, after all, but illusory, for he must of necessity 
go back in his investigations to those who lived con- 
temporaneously with the events which he describes, 
and there he cannot but find bias, prejudice, fixed 
opinions, partial judgments, and falsehood. 

Take, for instance, the case of the historian who, 
after our generation has passed away, will undertake 
to trace a narrative of the civil war that desolated our 
own land but a few years ago. In the absence of the 
actors and witnesses in that dreary conflict, he will 
resort to the publications of the day. If he seeks to 
describe the bloody battle say of Cow Ridge, he finds 
among the most reliable of his authorities the bun- 
combe Gazette and Trumpet Blast of Freedom, pub- 
lished in a loyal northern city, containing a special 
letter from its special correspondent, describing in 
glowing and enthusiastic terms the utter rout, con- 
fusion, and destruction of the rebel army. That 
correspondent graphically says: “The God of Battles 
has at last enabled the Northern Army to triumph 
over this wicked rebellion. The traitors who com- 
posed the Southern Army have fled in dismay, and the 
valiant troops who fought in behalf of freedom have 
at last struck a final blow for liberty and their country.”’ 

He then turns say to the Slaveholders’ Bugle and 
Fournal of Liberty, published a few miles south of 
Mason and Dixon’s lineon the very same day, and 


332 Lying as a Fine Art 


containing a special letter from its special correspond- 
ent, as to that particular battle: ‘‘ The hour of victory 
for the Southern Army has at last sounded. The God of 
Battles has at last spoken in thunder tones in our 
favor. The Northern horde of barbarous invaders 
has been driven in confusion back from our sacred soil. 
Our band of heroes, though contending against fearful 
odds, has utterly and gloriously defeated the enemy. 
Our victorious generals are now on the very eve of 
striking the final blow, and affixing the seal of victory 
to the triumph of our glorious cause.”’ 

And so on. The historical investigator will find 
ample authority to sustain whatever view of the case 
he may feel inclined to take. He may be a little 
puzzled to explain the official surrender of the one 
side after such a series of triumphs as he has read of in 
the Slaveholders’ Fournal of Liberty, and on the other 
hand he will not very easily understand why a contest 
which was so surely to have been settled in ninety 
days lasted so many bloody years. 

The city papers reported, a short time since, an 
eloquent discourse by a reverend gentleman who 
seems to be afflicted with the now very common dis- 
order which I might term, for want of a better ex- 
pression, “ Jesuitophobia,”’ in other words, a serious 
and patriotic apprehension that the brothers of the 
order of Jesuits are about to overturn all our glorious 
institutions and hand over the whole country, bound 
hand and foot, to their general, who resides in Rome, 
after having, of course, delivered over a few dozen 
heretics to the secular arm for instant combustion. 

In order aptly to illustrate the formidable character 
of this order, and to give an instance of the many 
atrocities which are to be laid to their charge, he cited 


Lying as a Fine Art 333 


the case of Joan of Arc. You may wonder, perhaps, 
what Joan of Arc has to do with the Jesuits, but he 
explained it in a very satisfactory manner: The 
dreadful tragedy in which that pure maid expiated the 
only crime which she had committed, viz., the saving 
of her country, would never have been perpetrated had 
it not been for the machinations of that dark and mys- 
terious body of men. They, and they only, are respon- 
sible to history and to posterity for this dreadful event. 

Now it happens that Joan of Arc was executed (if 
she ever was executed) in the year 1431, and that the 
famous order which disturbs the dreams of this pious 
gentleman was founded about one hundred years 
after that event. Of course so insignificant a period as 
one century is not worth noticing when you are dealing 
with an unprincipled and wicked adversary, and I 
should not have thought it worth our while to con- 
sider this matter, or even to mention it, had it not been 
that I am afraid the whole story is a myth, after all. 
I say afraid, because it is never pleasant to give up one 
of the delusions of your boyhood; and we have all 
heard so much and read so much and seen, perhaps 
wept over, so many beautiful pictures connected with 
this tragedy, that if that romance is torn out of our 
memory we will feel as though we had been deprived 
of some of our personal property. And yet, it is not 
at all certain that the heroic maid ended her life in the 
blazing fire of Rouen. Modern investigation seems to 
point to a much less romantic but quite as satisfactory 
termination of that glorious life. Newly discovered 
documents have led to the supposition that Joan not 
only escaped martyrdom, but was actually married. 
The documents cited in support of this theory are 
certainly very strong and very plausible. They are 


334 Lying as a Fine Art 


entitled to a great deal of weight, indeed to so much 
weight that if the Jesuit fathers who did not put her 
to death and the fanatical and bigoted men who did 
(or who are supposed to have done so) were upon 
their trial, there would be sufficient doubt in the case 
to acquit them all. Here, for instance, is a translation 
of an extract from a manuscript register of the events 
that had taken place only a short time before. It was 
found in the city of Metz by Father Vignier of the 
Oratory, who is described as “a learned and zealous 
philobiblion,”’ ever in pursuit of literary discoveries, of 
which so many are due to the institution of the Oratory. 
The manuscript is as follows: 


In the year 1436 Messire Phlin Marcon was Sheriff of 
Metz, and on the 2oth day of May of the aforesaid year, 
came the maid Jeanne, who had been in France, to la 
Grange of Ormes, near St. Privé, and was taken there to 
confer with any one of the Sieurs of Metz, and she called 
herself Claude: and on the same day there came to see her 
there her two brothers, one of whom was a knight and was 
called Messire Pierre, and the other ‘‘petit Jehan’”’ a Squire, 
and they thought that she had been burnt, but as soon as 
they saw her, they recognized her, and she them, and on 
Monday the 21st day of the said month, they took their 
sister with them to Boguelon, and the Sieur Nicole, being 
a knight, gave her a stout stallion, of the value of thirty 
francs and a pair of saddle clothes; the Sieur Aubert 
Bouelle.a riding hood; the Sieur Nicole Grognet a sword; 
and the'said maiden mounted the said horse nimbly, and 
said several things to the Sieur Nicole, by which he well 
understood that it was she who had been in France and she 
was recognized by many tokens to be the maid Jeanne of 
France, who escorted King Charles to Reims; and several 
declared that she had been burnt in Normandy, and she 
spoke mostly in parables. 


Lying as a Fine Art 335 


The narrative then goes on to relate how a certain 
count saw her and loved her greatly, 


and when she wished to go away he had a handsome cuirass 
made for her to equip her therein, and there was solemnized 
the marriage of Monsieur de Hermoise, Knight, and the 
said maid Jeanne. And afterwards said Sieur Hermoise 
with his wife, the maid, came to live at Metz in the house 
that the said Sieur had opposite to St. Seglenne and re- 
mained there until it pleased them todepart. (De Quincey’s 
Essay). 


A satisfactory illustration of the purely patriotic 
fallacy may be found in the charming story of William 
Tell. If there is anything that that sturdy little 
nation Switzerland feels proud of, besides its moun- 
tains and its cheese, it is the traditional glory that 
hovers about the exploits of that ancient hero. And 
now come more of these image-breakers, who insist 
that William Tell did not amount to much, after all— 
chiefly because he never existed, and secondly because, 
if he did exist, he was a Dane or Scandinavian, which 
would not make the case much better for the Swiss, 
who have claimed that he was peculiarly and ex- 
clusively their own. The whole story seems to be a 
fable. And the gallant exploit of shooting the apple 
off his boy’s head, and his fierce answer to the tyrant 
Gessler, and his nimble jump into the rowboat are all 
swept away by the ruthless hand of subsequent his- 
torians. Perhaps, and we offer this by way of con- 
solation, two or three hundred years hence it will be 
found that they, too, are in error, and some new and 
even more interesting history may be substituted for 
the one we now have. 

I will not attempt to enter with particularity into 


336 Lying as a Fine Art 


farther instances of the patriotic lie. It is a very 
common and in many cases, I think, a harmless one. 
Surely the harmony of the universe will not be dis- 
turbed if that sturdy little people that I have just 
spoken of continues to turn a Danish or Scandinavian 
fable into a Swiss reality, nor could other nations 
plausibly find fault with the French people of bygone 
ages who were entirely satisfied that the oil which 
anointed their newly-made kings had come down 
from Heaven, where it had been made expressly for 
that purpose. Even if it were not absolutely settled 
and placed beyond the reach of historical controversy 
that St. Patrick destroyed all the serpents in Ireland, 
I can see no sound reason for disturbing a belief which 
only does honor to that excellent saint, which gratifies 
the patriotic and religious sense of his people, and 
inflicts no serious mischief upon the reptiles. 

The political lie, or the art of fabricating false re- 
ports for political ends, is also one entitled to notice. 

It is said to have been a maxim of Catherine de 
Medici that ‘“‘a false report if believed during three 
days may be of great service to the state.”’ 

Whether she said it or not is of little consequence. 
Many before her acted upon this theory, and many 
since her day have practised the lesson impliedly 
taught, with signal ability and marked success. 

The beauty of this class of fiction consists in circum- 
stance and in a mixture of reality, or what has been 
happily called “a just discrimination between solid 
lying and disguised truth.”’ 

In every such fable there should be some bit of 
homely detail to throw a realistic coloring about the 
picture. Thus, for instance, in a momentous crisis 
in English history it became necessary to deny the 


Lying as a Fine Art 337 


legitimacy of James II.’s son, commonly known as the 
Pretender. An inexperienced artist would have con- 
fined himself to a direct denial of the child’s title. He 
would have said and sworn that the queen had no son, 
never had had a son, and never would have a son. 
But not so the real artist who took charge of the work. 
He pictures a most probable and most plausible scene 
ending with the conveyance into the queen’s bed- 
chamber of a spurious infant that a bigoted and 
unscrupulous popish king was seeking to palm off on 
a free and Protestant country. But that was not 
enough to satisfy the exigencies of true art. He gave 
the hour, the names of the attendants, the language of 
the actors, and then came the finishing and artistic 
touch, the stroke of genius which challenges admira- 
tion to this day: he positively assured his hearers that 
the infant had been carried to the queen’s room in a 
warming-pan. The warming-pan crowned the picture 
with imperishable glory and with absolute success, 
and so high an authority as Lord John Russell has 
stated “that the fiction of the warming-pan, enclosing 
the young pretender, brought more adherents to the 
cause of the Whigs than the Bill of Rights.” 

So, too, it is important that there should be an 
element of truth, if possible, in the story. After the 
battle of the Boyne, for example, Pére Londel, who 
published a register of the times, recorded the event in 
the following brief but not entirely satisfactory man- 
ner: “The battle of the Boyne in Ireland. Schom- 
berg is killed at the head of the English,” and that was 
all. This has been referred to as an equivocation, and 
condemned as an unfair way of putting things. Still 
you will observe that every word is strictly true; and 
if the writer did not say what became of King James 


22 


338 Lying as a Fine Art 


on that momentous day he may have had good reason 
for his abstinence. Perhaps he did not know, or such 
was the rate of speed which that hasty monarch ex- 
hibited on that occasion that perhaps he did not care 
to follow him. 

A very pretty bit of this sort of political fallacy was 
exhibited when Philip sought to conquer England with 
his fleet. To say that he was a bigot and would send 
an indefinite number of heretics to the stake was not 
enough. Perhaps, too, it might have been true. So 
that wiliest of statesmen, Elizabeth’s minister, spread 
reports of the thumbscrews and other instruments of 
torture which the Spaniards were supposed to have 
brought with them, and this inflamed the fury of the 
people in the most satisfactory manner. 

Though why they should have been troubled at the 
importation of thumbscrews or racks it is not very 
easy to understand, for surely Elizabeth had a very 
respectable supply on hand, which she did not much 
scruple to use when her Roman Catholic subjects were 
concerned. Indeed, the sovereigns of England, Catho- 
lic or Protestant, in those ages did not much scruple 
to make use of that or any other means of distressing 
their subjects, of whatever faith. 

To sum up this part of my subject I will borrow a 
passage from an author who joins to his other titles 
to the admiration of posterity that of being the 
father of the present English premier: 


There is no class of political lying which can want for 
illustration if we consult the records of our civil wars. 
There we may trace the whole art in all the nice manage- 
ment of its shades, its qualities, and its more complicate 
parts; from invective to puff, and from inuendo to pre- 
varication! We may admire the scrupulous correction of 


Lying as a Fine Art 339 


a lie which they had told, by another which they are tell- 
ing! and in triple lying to over-reach their opponents Royal- 
ists and Parliamentarians were alike; for, to tell one great 
truth, the father of lies is of no party!”’ (Disraeli’s Curt- 
osities of Literature.) 


It would not be just to close without a word of 
praise bestowed upon what may be called the minia- 
ture lie. I allude to the nickname—one of the most 
powerful of all the weapons in the arsenal. In no way 
can calumny be so charmingly epitomized and false- 
hood so exquisitely abridged as in the nickname. It 
is a homely old-fashioned saying that “if you want to 
hang a dog, give him a bad name”’; but it is not only 
the four-legged friend of man who has suffered from 
this compendious form of vituperation. Take re- 
ligious discussion, for instance, and you will see the 
truth of this most strikingly exemplified. Advocate, 
if you please, any doctrine of your Catholic faith, 
and you are silenced with the contemptuous retort 
that you are merely advocating a popish superstition. 
If you obstinately persist and get the best of the argu- 
ment, then you are called a ‘Jesuit in disguise,” 
which means that you are taught to lie, and that 
prevarication is one of the cardinal virtues of your 
creed. If, however, you still refuse to yield, and 
vanquish your adversary in a fair discussion of a sub- 
ject, whatever it may be, say, if you please, “ Church 
and State,’ the newly-created nickname “Vatican- 
ism” is fired off at you, and you leave the field in 
confusion, none the less perhaps because you do not 
absolutely comprehend what the epithet means. 
Somewhat as the famous fish-wife whom Dr. Johnson 
encountered in wordy strife. The tide of battle ran 
against the doctor for a while, until he summoned the 


340 Lying as a Fine Art 


parts of speech to his assistance. He called her a 
noun, a pronoun, an adverb, and she hesitated. He 
vigorously charged her with being conjunction and 
preposition. She wavered. And when at length with 
stentorian voice he accused her to her face of being a 
parallelopipedon, she broke in disorder and fled in the 
utmost confusion. 

I ought, perhaps, to say a word about that sort of 
mendacity which is of the newspaper order, but am 
a little timid about anything that may disturb the 
serenity of that Olympian divinity which we call the 
press. So I will content myself with offering you 
what an old writer, Patin by name, said some years 
ago. Whether it is true now or not you can judge for 
yourselves. He characterizes the race of newspaper 
scribes, as reporters were then called, in Latin that I 
will cite, but not translate, namely, hominum genus 
audacissimum, mendacissimum, avidicissimum. 

He goes on thus: 


These writers insert in their papers things they do not 
know and ought not to write. It is the same trick that is 
playing which was formerly played; it is the very same 
farce, only it is exhibited by new actors. The worst cir- 
cumstance I think, in this is, that this trick will continue 
playing a long course of years, and that the public suffer 
a great deal too much by it. 


I have now touched upon the art in some of its 
varied manifestations, purposely refraining from refer- 
ence to it in its strictly moral aspects. I am sure you 
need no advice on the subject in connection with the 
morality thereof, but if you should, perchance, ask my 
counsel, I will merely say as Mr. Punch did, when con- 
sulted by certain young people about matrimony, 
“Dont.” 





XVI 


THE CHURCH AND THE BAR! 


is the Church and the Bar, the Priests and 
the Lawyers. A very fruitful and suggestive 
theme, you must all admit, and one upon which many 
lectures might be delivered. If I should undertake to 
exhibit the virtue and merits of the clergy and their 
title to your admiration and respect, I might speak all 
night and still, when I concluded, you would feel that 
I had not said half enough; while I might occupy 
your time and attention many evenings without satis- 
fying you that I had exhausted the catalogue of the 
lawyers’ iniquities. I must be careful, then, to steer 
clear of such appalling dangers and endeavor to attain 
my end at a lesser cost of time and of patience. 
Whatever else you may think and say of my subject, 
this you must admit, viz., that for once at least the 
bar, coming before you hand in hand with the clergy, 
is found in good company. That it has some sort of 
right to enter into that company without incurring 
the danger of merited dismissal I shall try to prove. 
For the only body of men whose superiority over, nay, 
whose equality with, the bar, I am ready to concede, 
is the body of the clergy. If I can prove that clergy 


M subject this evening, ladies and gentlemen, 


1 An address under the auspices of the Catholic Union. 


341 


342 The Church and the Bar 


and bar have been for centuries connected and in- 
timately united—that so little peril to their souls did 
good and reverend men discern in the practice of the 
law that they only abandoned it when they could not 
help it—then I shall claim that I have done much to 
reinstate my worthy brethren in the favorable opinion 
of all sensible men. Of course I well know that there 
ever will and ever must be much abuse and injustice 
done to those whose mission is to bring the wicked to 
punishment and to tear away the veil from knaves 
and hypocrites, but this must needs be in the very 
nature of things. 


No rogue e’er felt the halter draw 
With good opinion of the law. 


So all the rogues will be against us, and they are numer- 
ous enough to make a very considerable noise. But, 
even rejecting these, what class of men can claim to 
sit in judgment upon the bar? How we might retort 
upon them if time were not so valuable and we were 
not used to abuse! To the faultfinding merchant, for 
instance, we might answer: Remember that the first 
genuine mercantile operation on record is Joseph sold 
by his brethren, and, alas, have you not been doing 
the same and selling your brothers ever since! If 
the broker should venture to open his lips in dispraise 
of our cloth, we might cite against him the definition of 
his own calling, made so long since and by such high 
authority that we must fain accept it as true: A 
broker is a man who, when two persons are doing 
business, steppeth in between the two and robbeth 
both! Nor has the carping tailor a right to whisper a 
syllable against us, for it takes nine of him to make 
one man, and such a fractional bit of humanity were 


The Church and the Bar 343 


wise to hold his peace. As for that useful and re- 
spectable member of society the shoemaker, we may 
say to him, in the time-consecrated language of the 
proverb, ‘Shoemaker, stick to your last.’’ As for the 
doctors, they are so busy fighting and devouring each 
other on the ground of different and hostile practices 
that they never think of the lawyer except when it be- 
comes necessary to sue their patients for their fees— 
so I leave them out of the question. As forthe mighty 
banker, what is he but a money-changer, whose fre- 
quent little “mistakes”? subject him to ignominious 
expulsion from the Temple of Justice, much as near 
two thousand years ago he was expelled from the 
Temple of Jerusalem! It is true a certain class of 
social reformers to be found in one of Shakespeare’s 
plays cry out, “ The first thing we do we ’ll hang all the 
lawyers.” But as it has generally turned out that the 
lawyers reversed the proceedings and hung them, 
their opinion is of no great practical value. If the 
reverend clergy, however, should take up the swelling 
note of denunciation—which, of course, is a wild suppo- 
sition—then we would answer with a lecture on the 
clergy and the bar! 

The clergy and the bar are old and tried friends. 
Not only have they fought the good fight shoulder to 
shoulder on many a well-contested field, but time was 
when they were, as one might say, Siamese twins, and 
the mud flung at the lawyer’s gown was certain to 
bespatter the cassock of the priest. This a short 
historical narrative will show. 

I will carry you back to days gone by, to that “once 
upon a time’ that becomes more charming as it 
recedes into the mists of antiquity, illuminated by 
no magical stenographer, nor quick-witted newspaper 


344 The Church and the Bar 


interviewer, away back to the time when a Norman 
knight fought at Hastings for a kingdom and won. 
Now this new-made king as soon as he had seated 

himself upon his throne bethought him of his con- 
science, and, lest in the hurry and confusion of business 
he should lose it, he sought out a keeper to guard it 
for him. He had but two valuable commodities, it 
would seem, that he was not capable of guarding with 
his stout lance and sturdy warriors; the one, as I 
have said, his conscience, and the other, the great 
seal that evidenced his royal authority. So he ap- 
pointed a Norman priest to the office of Chancellor or 
Keeper of the great Seal, one Maurice, who sub- 
sequently became Bishop of London—thus uniting 
the office of a judge to the priestly functions. Per- 
haps I might be satisfied with tracing the office of the 
chancellor to such a source and one so respectable by 
reason of antiquity and priestly dignity, but I can 
confer still higher honor on the judge’s robes by 
carrying you more than two centuries back of William’s 
time and showing you not only a bishop but a saint, 
Swithin by name, filling the same office. He was a 
judge, hence must have known some law, whence I 
infer that he was a lawyer before that. His respecta- 
bility was so well established that even after the 
separation of England from the Holy See, Saint 
Swithin’s name was kept upon the calendar, and there 
it is to this day, the 15th of July. He is called the 
raining saint, because, as the popular rhyme has it in 
Scotland, 

St. Swithin’s day, if it do rain, 

For forty days it will remain; 

St. Swithin’s day, if it be fair, 

For forty days ’t will rain na mair. 


The Church and the Bar 345 


I only know of one reported case of this saint, 
bishop, and magistrate, but if we can judge of all from 
the specimen transmitted, he certainly stands far 
above the modern chancellors who have occupied his 
judicial seat. I translate it from William of Malmes- 
bury. ‘‘ An old woman came to complain to him that 
the eggs in her basket which she was carrying to market 
had all been wantonly broken. He ordered the poor 
and squalid woman to be brought before him, and 
when he had heard her piteous story he was moved with 
compassion, and having at once blessed himself, he 
restored all the eggs to their former sound condition.”’ 

But I must return to King William and his chan- 
cellor, merely remarking that before his time we find 
distinct traces of a class of lawyers, known as Masters 
in Chancery, all of them in holy orders, all of them 
well trained in jurisprudence, and all of them no doubt 
quite as well able to perform the duties of a master’s 
office as their successors, not excepting, perhaps, the 
drawing of a bill of costs. 

Chancellor Maurice, then, was not by any means 
the first lord chancellor. The office was over two 
hundred years old when he was appointed to it, and 
long before he was called upon to divide his time be- 
tween the Church and the bench there was a sort of 
college of justice, composed of the chancellor and his 
clerical lawyers, who dispensed justice and law, divine 
and human, and, so far as we know, to the general 
satisfaction. 

We can all understand and readily appreciate the 
keepership of a kingly conscience when the custodian 
was a priest, whose holy function it was to keep that 
delicate part of the royal organism in good condition, 
but I confess that I cannot quite conceive how lay 


346 The Church and the Bar 


chancellors went about it when they by virtue of this 
high office undertook the same duty. Fancy the lord 
chancellor who had within his keeping that infinitely 
delicate organ, Henry VIII.’s conscience; fancy, to 
bring the matter more nearly home to us, that hard- 
swearing, godless, immoral old Thurlow, George III.’s 
lord chancellor, giving ghostly counsel to his sovereign 
and advising him not to swear, nor blaspheme, nor 
violate the decencies of domestic life, nor set bad ex- 
ample to his subjects; or, if you can, imagine a keeper 
of George IV.’s royal conscience trying to do his duty. 
Indeed, I think the guarded language of an ex-chan- 
cellor, who ought to be an expert on the subject, may 
be fully trusted. 

“The custody of the royal conscience may possibly 
be considered one of the obsolete functions of the 
chancellor, for he is no longer a casuist for the sovereign 
as when priest, chancellor, and confessor.’”’ I cannot, 
interesting as the subject would surely be, carry you 
through the long list of bishops, archbishops, nay, 
cardinals, who filled the lord chancellor’s seat. Many 
of them have left great names, and to their honor and 
the honor of their Church be it said that as a rule, and 
considering the rudeness and freedom of the times in 
which they lived, they have left an honorable record 
behind them. It was no rare instance of self-denial 
for one of these great bishops and judges, after ad- 
ministering the laws of God and man for years, to 
descend from this eminence to seek the peace and 
retirement of a cloister, there to await his end. No 
ribbons, garters, pensions, nor splendid gifts could 
help him then and he knew it. 

But I feel in conscience bound to make one state- 
ment that will, I fear, greatly lower these holy men 


The Church and the Bar 347 


in your esteem. You have many of you no doubt 
received a bit of paper, half-printed, half-written, 
generally very dirty, and which is thrust into your 
reluctant hand by a seedy but penitent gentleman, 
against whom your feelings for the moment are simply 
of hatred unalloyed. That paper, he says, is a 
“speeny.’”’ Your lawyer calls it a “subpoena.” You 
don’t call it anything, but invoke something not a 
blessing on its inventor. Alas, my friends, be careful: 
it was invented by a bishop, a real genuine bishop, 
John of Waltham, Bishop of Salisbury, and that I 
should have to confess it!—it is recorded in the. books 
that great encouragement was given to suitors in that 
court for the sake of the fees to the chancellor and 
his officers. 

Pray bear these things in mind when you frame 
your indictment against or pass judgment on the bar; 
subpoenas and fees were devised by good and holy 
men, and therefore must be good and wholesome 
things! 

There was another court that was of equal, or almost 
equal, importance—I mean the Court of the Justicier, 
or Chief Justice, an office now the first in England with 
the exception of that of lord chancellor. The latter, 
however, continues to rank above all others, for no 
other magistrate carries the king’s conscience and the 
king’s seal in the bag. 

The first important controversy that we find any 
mention of as having been tried before this court was 
about the year 1080. The presiding officer was Geof- 
frey, Bishop of Constance, but in order that lay suitors 
may take some comfort to themselves and not remain 
under the serious error that going to law is a sin, I 
hasten to say that the plaintiff in the case was an 


348 The Church and the Bar 


archbishop and the defendant a bishop. It is but 
fair, however, to qualify this statement by adding that 
this latter bishop (the Bishop of Bayeux) was Earl of 
Kent as well, and in that capacity had seized certain 
lands and privileges belonging to the church of Canter- 
bury. I may here narrate, by way of illustrating the 
inconvenience of being an earl and a bishop at the 
same time, that this distinguished personage was some 
time afterwards arrested by the Conqueror, who was 
his half-brother, and who laid his own hands upon 
him, because the officers of justice out of respect for 
ecclesiastical immunity scrupled to execute his com- 
mand, the bishop insisted that being a prelate he 
was exempt from all temporal jurisdiction, whereupon 
William piously exclaimed: “God forbid that I should 
touch the Bishop of Bayeux, but I make the Earl of 
Kent my prisoner!’ and incontinently sent him to 
prison, where he kept him five years. From this ready 
and nice distinction of King William and his prompt 
escape from a painful dilemma, I am inclined to think 
that he had himself given a little attention to the trials 
held in his court and had profited thereby. 

The clergy continued for a long time almost ex- 
clusively to fill the judicial offices as well as to engross 
the practice and the legal profession; indeed they 
gained great distinction therein, and it is a comfortable 
reflection that if, as we trust, these worthy churchmen 
are with the saints, there is a goodly number of lawyers 
in Paradise. 

I do not find that the reverend, very reverend, and 
right reverend judges objected to the profession of the 
law or to dispensing justice, nor have I discovered that 
they ever expressed any fear that such occupations 
were either derogatory to their character or perilous to 


The Church and the Bar 349 


their spiritual welfare. No doubt they understood 
that the scriptural anathema upon “lawyers”’ did not 
apply to the advocate, whose duty it was to aid in the 
administration of justice, but to the Jewish expounders 
of the Mosaic law; and it is only reasonable to presume 
that when the reverend fathers preached on Sunday, 
after having argued their cases in court on Saturday, 
they explained this to their flocks, lest they themselves 
should suffer in their hearers’ estimation. I am not 
aware, if such was their practice, that it has been 
followed since the profession of the law has become 
an exclusively lay employment, so that the solemn 
“Woe to you, lawyers”’ still adds a note to the chorus 
of denunciation which I have complained of. As I 
have said, the clergy continued to fill these offices with 
very marked ability. Not only did they not murmur 
at the two-fold occupation to which they were sub- 
jected, but the fascination of the bar grew so strong 
that it seemed a matter of serious apprehension 
whether the priestly function would not be seriously 
interfered with by the other. At any rate so the 
Holy See determined in the reign of Henry II., that 
monarch having appointed three bishops as com- 
missioners to hold the office of chief justice. The 
Pope, on hearing of their appointment, wrote to say 
that it was the duty of pastors to feed their flocks, not 
to act the part of any secular magistrates, and he bade 
them leave the court to attend to the diocese to which 
they had been consecrated. This interference of the 
holy father in this particular instance does not appear 
to have been regarded as a positive prohibition, for 
nine years after we find the Bishop of Durham in 
possession of the chief justiceship. 

It was not until the reign of Edward I. (in 1278) 


350 The Church and the Bar 


that a serious attempt appears to have been made to 
select the judges from among laymen. Though all 
judicial knowledge had been the monopoly of the 
clergy and they continued long after this exclusively 
to cultivate a knowledge of the civil law, yet a school 
of common or municipal law had been slowly growing 
up for the legal education of laymen; the societies 
formed by them were known as “Inns of Court,’”’ and 
from their body Edward resolved to select and did 
select his chief justice, Ralph de Hengham. In con- 
nection with this a singular statement is made by 
historians. This Ralph de Hengham, when he be- 
came a candidate for business at the bar, had not re- 
ceived the tonsure. An unshaven head was a serious 
obstacle to professional success, owing to the popular 
belief that no man could be a good lawyer who was not 
a priest; in fact so serious was it that he felt obliged 
to take holy orders, and he was made a canon of St. 
Paul’s in order to practice law! The absence of this 
distinguishing feature of the clerical lawyer was deemed 
so important an objection that to conceal the want of 
the tonsure the sergeants at law adopted the coif, or 
black velvet cap, which became the badge of their 
order. Fancy a lawyer obliged to pretend that he is 
a priest in order to get clients! Fancy the client in- 
sisting upon a view of the crown of the lawyer’s head 
before he would give him a retainer! This resort to 
laymen was confined, however, to the law judges and 
was not extended until a much later period to the 
chancellors. Their functions, both as keepers of the 
king’s conscience and as judges of a court of equity, 
were deemed specially to require ecclesiastics for their 
discharge. Perhaps you may not all quite understand 
the distinction between courts of law and courts of 


The Church and the Bar 358 


equity, nor will I undertake to explain it any farther 
than to say that the law judges were bound strictly, 
and in many cases literally, to observe the law as they 
found it, while the equity judges decided according to 
good conscience and equity; very elastic terms, you 
will observe, and depending much upon the discretion, 
perhaps the whim, of the magistrate. At the present 
day the rules regulating equity courts are well settled 
and generally of ready application, but in the infancy 
of these courts it was easy to go astray and great dis- 
satisfaction has been sometimes expressed at the work- 
ing of the system. The following passage illustrates 
this: 


Equity [says Selden in his Table Talk|—equity is a 
roguish thing—For law we have a measure. Equity is 
according to the conscience of him who is Chancellor, and 
as that is larger or narrower, so is Equity. It is all one 
as if they should make the standard for the measure we 
call a foot, a chancellor’s foot, what an uncertain measure 
would this be! One chancellor has a long foot, another a 
short foot, a third an indifferent foot! it is the same thing 
with the chancellor’s conscience. 


So, too, the well-known language of Lord Camden 
on judicial discretion: 


The discretion of a Judge is the Law of Tyrants; it is 
always unknown; it is different in different men, it is 
casual and depends upon constitution, temper and passion. 
In the best it is ofttimes caprice; in the worst it is every 
vice, folly and passion, to which human nature is liable. 


Notwithstanding all the objection of which the 
above extracts give a forcible and eloquent exposition, 
equity continued to thrive, bishops to fill the chan- 
cellor’s office, priests to practise in his court, and 


352 The Ghureh and) the Bar 


ec 


laymen, as the homely and expressive saying is, “to 
remain out in the cold.”’ I am bound to say that the 
churchmen were very fond of the business, and when 
they did retire from their forensic and judicial practice 
they did so, as Falstaff was a coward, only on com- 
pulsion. I do not think that it was the regular salary 
that attached them to this court, however, for in these . 
early days that was not extravagant. Originally the 
chancellor received an allowance of “‘five shillings a 
day, three wheaten cakes, one measure of clear wine 
and one of household wine, one large wax candle, 
and forty pieces of candle.’ The clerks were allowed 
“ten pence a day and one wheaten cake and half a 
measure of the household wine and one large candle 
and twelve pieces of candle.” What they did with 
the seasoned cakes and clear wine after their ex- 
haustive labors in court during the day I can readily 
conjecture, but the necessity of so many candles is not 
apparent. 

During the century that followed the invasion and 
conquest of England by the Normans only Normans 
were appointed to the important duty of keeping the 
royal conscience. The first Saxon who was honored 
with such a distinction was Thomas a Becket. An 
English biographer describes him as one of the most 
distinguished men of any race that England has ever 
produced, and he adds ‘‘ he is now invoked as a saint 
by all the votaries of the Roman Church.” 

This celebrated man is therefore peculiarly entitled 
to notice. His story sounds strangely like a fascinat- 
ing romance, and whatever may have been his failings 
when in power, his courage, his spirit, his genius, his 
eventful life, his tragic end, appeal at once to our 
imagination, to our admiration, and to our sympathy. 


The Church and the Bar 353 


I regret that time will not allow me to transcribe 
freely from the abundant materials before me. Fitz- 
stephen, his secretary, has given a narrative of his life 
showing in a graphic manner the mode of living and 
entertaining at that day. 


The Chancellor’s house and table [he says] were open to 
all of every degree about the Court who wished to partake 
of his hospitality, and who were, or appeared to be, re- 
spectable. He hardly ever sat down to dinner without 
Earls and Barons whom he had invited. He ordered the 
rooms in which he entertained the company to be daily 
covered during the winter with clean straw and hay, and 
in summer with clean rushes and boughs for the gentle- 
folks to lie down upon, who on account of their numbers, 
could not be accommodated at the tables, so that their 
fine clothes might not be soiled by a dirty floor. His house 
was splendidly furnished with gold and silver vessels, and 
was plentifully supplied with the most costly meats and 
wines. The prime nobility of England and the neighboring 
Kingdoms sent their sons to be servants to the Chancellor. 

The Chancellor was in high favor with the King, 
the Clergy, the Army and the people, on account of his 
eminent virtues, his greatness of mind and his good deeds, 
which seemed to spring spontaneously from his heart; 
serious business being finished, the King and he consorted 
as young comrades of the same station, whether in the 
palace, in church, in private society, or in excursions on 
horseback. 


But the sunshine of royal favor did not last forever, 
and he, too, learned not to put his trust in princes. I 
shall not attempt to recite the quarrel between the 
King and his chancellor nor its grounds. I will hasten 
to the culmination. After a hollow truce, in which 
the King seems to have acted with deliberate perfidy, 


23 


354 The Church and the Bar 


they parted for the last time after an interview which 
was held on French soil. Becket’s mind misgave him 
that he would not be fairly dealt with, but in spite of 
the warnings which he received and his own fore- 
bodings he determined to return to England as Henry 
wished. When he left he gave utterance to these 
mournful but pathetic words: “Necessity obliges me 
in the lowly state to which I am reduced to revisit my 
afflicted church; I go, Sir, with your permission, per- 
haps to perish for its security, unless you protect me. 
But whether I live, whatever may befall me, may the 
blessing of God fall upon you and your children.” 
Would you not say that the near approach of impend- 
ing martyrdom had already cast its shadow upon his 
soul? The dying year was not yet closed when 
Henry uttered that exclamation which will alone 
suffice to condemn his name to infamy as lasting as 
his victim’s glory: “Of the cowards that eat my bread 
is there: not one who will free me from this turbulent 
priest!’’ While we may in Christian charity hope 
that these reckless words came not from a murderer’s 
heart, yet they certainly were taken as a license for 
one of the cruelest and most cowardly crimes that 
stain the pages of English history. Four knights at 
once started upon the unholy errand. They at first 
sought to intimidate him with threats, but there was 
no room in that stout heart for fear of living man even 
were that man a king. Undaunted he replied: “In 
vain you menace me. If all the swords of England 
were brandishing over my head, your terrors would not 
move me. Foot to foot you would find me fighting the 
battle of the Lord.’’ And with no tremor on his lips, 
no fear in his heart, no hesitation in his step, he left 
their presence to join in the vesper service that had 


The Church and the Bar 355 


commenced in the adjoining cathedral. Already the 
voices of the choir singing the praises of Him who at 
that solemn Christmas season had come to teach peace 
and love to men were resounding through the sacred 
building. Never on earth was Thomas a Becket to 
join in singing his Master’s glory. As soon as he had 
entered the church his trembling attendants ordered 
the gates barred behind him, but he at once ordered 
them to be reopened. “The temple of God,” he said, 
“was not to be fortified like a castle.’ He had not 
reached the altar steps when four mail-clad knights 
with twelve companions, all in armor, burst into the 
church. The archbishop disdained to fly, as he might 
well have done with the aid of the darkness that was 
fast gathering about them all. A voice was heard, 
“Where is the traitor?’’? No answer was made. 
““Where is the archbishop?’’ was the next cry. He 
replied, “I am here, the archbishop, but no traitor. 
Reginald,’ he added, turning to the leader of the 
murderous mob, “I have granted thee many favors, 
what is thy object now? If you seek my life, let that 
suffice, and I command you in the name of God not 
to touch one of my people.’’ He was then told that 
he must absolve certain prelates whom he had ex- 
communicated, much to the king’s displeasure. He 
refused. “Till they make satisfaction I will not ab- 
solve them!’”’ “Then die,” said one of the assassins. 
The blow aimed at his head was partly warded off by 
one of his assistants, whose arm was broken by the 
weapon intended for his master. The prelate felt the 
blood trickle down his face, but his heart was still firm 
and his spirit untroubled. He joined his hands and 
bowed his head, saying, “In the name of Christ and 
for the defence of His Church, I am ready to die.”’ 


356 The ‘Church and the Bar 


His assailants then wished to remove him from the 
church, as though the murder would be less heinous 
in any other place, but he declined. ‘I humbly com- 
mend my spirit to the God who gave it”’ were the last 
words that passed his lips, and hardly had they been 
uttered when blow upon blow was showered upon him. 
He was left a corpse at the foot of the altar. In spite 
of all the protestations, proclamations, and prohibi- 
tions of the King he was looked uponasa martyr. He 
was canonized shortly after his death, and the shrine 
of St. Thomas of Canterbury became one of the most 
honored and the most popular in England. To be 
perfectly impartial, however, I am bound to state that 
four hundred years after, Henry VIII., having con- 
cluded to throw off the authority of the Pope and 
substitute his own, determined that if the Pope could 
make a saint, the King could unmake him; and, not 
approving of St. Thomas a Becket’s principles touch- 
ing State and Church, he caused his attorney-general to 
bring an action, technically known as a quo warranto 
information, against the dead bishop for usurping the 
office of a saint. Thomas a Becket was summoned to 
leave the bed where he had slept for centuries, to 
appear in court to answer the charge. Alas! King 
Henry could summon spirits from the vasty deep, but 
would they come? St. Thomas failed to appear. 
Thereupon this impartial and generous king appointed 
a lawyer to appear for and defend him. After counsel 
had been heard the following sentence was pronounced: 


Thomas, sometime Archbishop of Canterbury, having 
been guilty of contumacy, treason and rebellion, his bones 
shall be publicly burnt to admonish the living of their duty 
by the punishment of the dead: and the offerings made at 
his shrine shall be forfeited to the Crown. 


The Church and the Bar 357 


The last clause of the sentence, you will observe, 
was not the least important nor the least profitable to 
his Majesty, who could well afford to appoint counsel 
at the public expense to defend the ex-chancellor’s 
title to a saintship. 

To close this part of my subject I will give you the 
language of the proclamation issued upon the rendering 
of this judgment: 


For as much as it now clearly appeared that Thomas a 
Becket had been killed in a riot excited by his own ob- 
stinacy and intemperate language and had been afterwards 
canonized by the Bishop of Rome as the Champion of his 
usurped authority, the King’s Majesty thought it expedi- 
ent to declare to his loving subjects that he was no Saint, 
but rather a rebel and a traitor to his prince, and therefore 
strictly charged and commanded that he should not be 
esteemed and called a Saint: that all images and pictures of 
him should be destroyed, the festivals in his honor be 
abolished, and his name and remembrance be erased out 
of all books under pain of his Majesty’s indignation and 
imprisonment at his Grace’s pleasure. 


You may therefore take your choice and call Thomas 
a Becket a saint and martyr or an instigator of riots, as 
you acknowledge the authority of the Pope or of 
Henry VIII. in the premises. As it only strengthens 
my argument to-night to add as many saints as possible 
to my roll of lawyers and judges, I trust you will take 
the papal view of the case. Still there is something 
so strikingly and refreshingly original in the idea of 
the “riot” instigated by the defenceless archbishop, 
who provoked the sixteen mail-clad men by his ob- 
stinacy and bad language, that I have not a word to 
say against those who may differ from me on this 


358 The Chureh and ithe Bar 


point. Do not fail to remember, however, that what- 
ever else he was or was not, he was a lawyer! 

I hope that I may now not unfairly claim that I 
have redeemed my pledge and that I have shown you 
that the clergy and the bar went hand in hand for 
centuries, and that distinguished prelates and zealous 
churchmen did not deem the profession of the law one 
of which they need be ashamed—nay, so important 
and sacred were the duties attached to its exercise that 
for a long time they kept it all to themselves! Per- 
haps you may say in answer to this that I have only 
satisfied you that the bar was entitled to admiration 
and respect so long as this state of things lasted, and 
ask how it was when untonsured gentlemen took the 
place of holy fathers in the courts. Although I have 
well-nigh exhausted my time, and perhaps your 
patience, I shall say one word in reply to this. 

I must premise by observing that I do not pretend 
that all the judges who succeeded the ecclesiastical 
incumbents were by any means perfect; indeed some 
of them were very bad and unprincipled men. Numer- 
ous reasons had contributed to make the appointment 
of clerical chancellors imperative. They were the 
best informed, I might almost say the only well-in- 
formed, men of the day. They gave particular at- 
tention to the study of the law, they did not endanger 
the crown by accumulating wealth or influence in 
their families, and, as the historian Hume (Vol. IL., p. 
409) admits, they were restrained by the decency of 
their character from that open rapine and violence so 
often practised by the nobles. Indeed these early 
chancellors did their duty in such a manner as to de- 
serve the praise and gratitude of posterity. The Eng- 
lish nation, says a distinguished modern historian, 


The Church and the Bar 359 


owes “a debt of gratitude to the chancellors who must 
have framed and revised the statutes which are the 
foundation of our judicial system, who must, by ex- 
planation and argument, have obtained for them the 
sanction of Parliament, and who must have watched 
over their construction and operation when they first 
passed into law.” It is not to be wondered at if the 
sudden introduction of a new class of men was not 
attended with the best results. Indeed Edward III., 
who was the first to resort to lay chancellors and who 
appointed one in 1340, found the experiment to work 
but indifferently. Partly owing to this and somewhat, 
perhaps, because the bishops murmured at the with- 
drawal from them of the office which they considered 
belonged to their order, he returned to the Church 
for his conscience-keeper. But after this, though 
several church dignitaries continued to hold the office, 
laymen were from time to time appointed until the 
reign of Henry VIII., when the office ceased to be 
entrusted to any but laymen. 

We have a curious specimen of the opinion which 
learned and book-loving bishops entertained of their 
ignorant brethren outside of the church. Bishop de 
Bury was in every sense a lover of books: they were 
his comfort, his delight, his recreation, and their ac- 
quisition the darling object of his ambition. No 
jealous lover could speak more fondly of his beloved 
than the pious bishop of his precious books. Hear him 
when his wrath is aroused on his favorite topic, the 
use and abuse of books: 


You will perhaps see a stiff-necked youth, lounging slug- 
gishly in his study, while the frost pinches him in winter 
time; oppressed with cold, his watery nose drops; nor does 
he take the trouble to wipe it with his handkerchief till it 


360 The Church and the Bar 


has moistened the book beneath it with its vile dew. For 
such a one, I would substitute a cobbler’s apron in the 
place of his book. He has a nail like a giant’s, perfumed 
with nastiness, with which he points out the place of any 
pleasant subject. He distributes innumerable straws in 
various places with the ends in sight, that he may recall 
by the marks what his memory cannot retain. 
Furthermore, laymen to whom it matters not whether Shs 
look at a book turned wrongside upwards or opened before 
them in its natural order, are altogether unworthy of any 
communion with books. Let the clerk also take notice 
that the dirty scullion reeking from the pots, do not touch 
the leaves of the books unwashed. 


But if I do not find you at least one instance of a 
real Christian chancellor and lawyer who was nota 
priest or a bishop you will think that I am unable to 
fulfil my promise. I mean, then, before closing to 
cite a single example and to say a word of one who 
comes as near representing the ideal perfection of 
Christian character as any man whose name I have 
mentioned to-night. Indeed I know of no blemish in 
that character, of nothing that could be added to 
make his name shine with purer brilliance; and as 
though it had pleased Providence to make his fame 
complete, he died the death of a martyr after living 
the life of a saint. I allude to Sir Thomas More. 

This distinguished man, as celebrated for his learning 
as his piety, came very near entering a convent in 
early life and ending his days as a monk, but finally 
changed hjs mind before becoming irrevocably bound. 
He concluded to marry, in order that he might be a 
pattern (this is his own language) “to pious married 
men how they should carefully bring up their children; 
how dearly they should love their wives; how they 


The Church and the Bar 361 


should employ their endeavors wholly for the good of 
their country, yet excellently perform the duties of 
religious men.” 

After his admission to practice he rose so rapidly 
that there was scarcely any cause of consequence in 
which he was not engaged. I regret that I am not 
able here, from lack of time, to give you a full insight 
into his beautiful private life, to which there are so many 
testimonials. His son-in-law, who dwelt under his 
roof, says that “his custom was daily (besides his 
private prayers with his children) to say the seven 
psalms, the litany, and the suffrages following: so 
was his guise with his wife and children and household 
nightly, before he went to bed, to go to his chapel and 
there on his knees ordinarily to say certain psalms 
and collects with them.’’ Erasmus says: “His house 
was a school and exercise of the Christian religion. 
All its inhabitants, male or female, applied their 
leisure to liberal studies and profitable reading, al- 
though piety was their first care. No wrangling, no 
angry word was heard in it; ewery one did his duty 
with alacrity and with a temperate cheerfulness.” In 
an evil hour for him he was appointed lord chancellor 
by his king, Henry VIII. How he filled the office I 
need not say. The wish that Shakespeare put into 
Cardinal Wolsey’s mouth when told of More’s ap- 
pointment beautifully expresses it, for he was all that 
that cardinal (himself a chancellor) once wished him to 
be: 

May he do justice. 

For truth’s sake and his conscience: 

That when he has run his course 

And sleeps in blessings, his bones 

May have a tomb of orphans’ tears wept on them! 


362 The Church and the Bar 


But, alas! King Henry must be pope—a harmless 
wish enough to all but himself had he not insisted that 
others must recognize him as such. One—the first 
—layman called upon to give the example of this rec- 
ognition was More. The whole trouble arose out of 
Henry’s wish to repudiate his wife, Catharine, and to 
take a new one. How many learned and great men 
gave in to his wish we all know. Luther did not, it 
seems, approve of repudiating Catharine, but was 
willing that Henry should take Anne too. As Lord 
Campbell writes, he (Luther) had a great leaning to 
polygamy and thought that it would be better that a 
priest should be allowed several wives than none at 
all, and that the practice of the Jewish kings might be 
safely followed. But More persisted in following the 
dictates of his conscience. Persecutions, imprison- 
ment, threats of death, separation from all those whom 
he loved; and finally, by a refinement of cruelty which 
was no exceptional fact in that bloody reign, his few 
books in his prison cell were taken away from him. 
But nothing shook him—nay, nothing seemed to im- 
pair that quaint and gentle cheerfulness that so 
peculiarly distinguished him. There is one sight more 
beautiful than a strong man struggling with adversity : 
it is the spectacle of a brave man who silently and 
smilingly bows his head to the inevitable! 

There was one short struggle in his breast at the 
commencement, but it was soon over and the only 
evidence we have of it is in the beautiful words that he 
uttered after an examination before the lords who 
sought materials for his conviction. ‘In good faith,” 
he said, his old merry smile lighting up his face, “in 
good faith I have given the devil a foul fall: because I 
have with those lords gone so far that, without great 


The Church and the Bar 363 


shame, I never can go back.’’ And he never did. 
When he was threatened with death if he resisted the 
King: “Is that all?” he said; “why, then there is no 
difference between your Grace and me, but that I 
shall die to-day and you to-morrow.” And in that 
same spirit, with that same brave cheeriness, he lived 
through the dreary time until his spirit left his body 
for the world in which he already seemed to dwell. 
What more beautiful picture of a saintly life and 
saintly end than this? It remains for me but to show 
you how he felt towards his enemies and I leave him, 
reluctantly, I confess, for of all the names that stand 
out in the long roll of English lawyers and chancellors 
none, I think, is more lovable and none more admi- 
rable than that of Sir Thomas More. Thus he spoke 
to the judges who sentenced him to death: 


This farther have I only to say, my Lords, that like as 
the blessed apostle Saint Paul was present and consenting 
to the death of the protomartyr, Saint Stephen, keeping 
their clothes that stoned him to death, and yet they be now 
twain holy saints in heaven, and there shall continue friends 
together forever: So I verily trust and shall therefore 
heartily pray, that, though your Lordships have been on 
earth my Judges to condemnation, yet that we may here- 
after meet in heaven merrily together to our everlasting 
salvation; and God preserve you all, especially my sover- 
eign Lord the King, and grant him faithful councillors. 


It is not my province to pass historical judgments, 
but I ask the privilege of reading to you one short 
passage from an author whom I have often referred 
to, Lord Campbell, a learned writer, once chief justice 
and lord chancellor of England, on the character of 
Henry VIII., the king whom Sir Thomas thus prayed 


364 The Church and the Bar 


for. Ido this because it is the fashion now to rewrite 
the verdicts of history and I think you may not be 
displeased to hear the opinion of one who, in addition 
to his distinguished ability and experience in weighing 
evidence, is not open to the objection of taking the 
Catholic view of history: 


We may be amused by a defence of Richard III., but 
we can feel only indignation and disgust at an apology of 
Henry VIII., whose atrocities are as well authenticated as 
those of Robespierre and are less excusable (vol. 1., Lord 
Chanclr., p. 473). It is impossible that there should not 
have been general joy at the deliverance of the country 
from the rule of such a heartless tyrant (p. 522). 


I should have wished to carry you down to a later 
period, to cross the channel with you that we might 
catch a glimpse of that grand old French bar, to which 
as far back as Charlemagne none could be admitted 
except ‘mild, pacific men, fearing God and loving 
justice.”’ 

I wish that I could show you some of the splendid 
figures of our own American bar, second to none in 
ability, in honest independence, and fearless dignity: 
our Marshalls, Storys, Choates, Websters, and, shining 
brightly among them all, the serene and gentle figure 
of brave old Chief Justice Taney, who lived down 
obloquy and slander by the purity and modesty of his 
life even more than by the superiority of his genius— 
but time will not permit. 

If you should ask me the name of the bar’s patron 
saint I should feel bound to say that I cannot answer. 
I am not sure that it has one or has not, but I will give 
you the facts and let you decide. 

Carr, a very old writer, tells this story: Saint 


The Church and the Bar 365 


Evona, a lawyer of Brittany, came to Rome to entreat 
the Pope to give the lawyers a patron saint, to which 
the Pope replied that he knew of no saint but what 
was disposed of to other professions. At which Evona 
was very sad, and earnestly begged of the Pope to think 
of one for him. At last the Pope proposed to St. Evona 
that he should go round the church of St. John of 
Lateran blindfold, and after he had said so many Ave 
Marias that the first saint he laid hold of should be his 
patron; which the good old lawyer willingly undertook, 
and at the end of his Ave Marias he stopped at the foot 
of St. Michael’s altar, where he laid hold of the devil 
under St. Michael’s feet and cried out: “This is our 
saint; let him be our patron.”’ So, being unblindfolded 
and seeing what a patron he had chosen, he went to 
his lodgings so dejected that a few months after he died. 

And now to conclude, and that I may magnani- 
mously end with the laugh against myself, I will give 
you a poetical effusion, attributed, falsely I doubt not, 
to a clerical pen (Jeaffreson) : 


Professions will abuse each other; 

The priest won’t call the lawyer brother, 
While lawyers still be-knave the parson, 
And say he cants to keep the force on. 
Yet will I readily suppose 

They are not truly bitter foes, 

But only have their pleasant jokes 

And banter, just like other folks. 

And thus, for so they quiz the law, 
Once on a time th’ Attorney Flaw, 

A man to tell you as the fact is, 

Of vast chicane, of course, of practice; 
A notice had to quit the world, 

And from his desk at once was hurled. 


366 


The Church and the Bar 


’T is said (without ill-natured leaven) 

“Tf ever lawyers get to heaven, 

It surely is by slow degrees.” 

(Perhaps ’t is slow they take their fees). 
The case then now I fairly state: 

Flaw reached at last to heaven’s high gate; 
Quite short he rapped, none did it neater; 
The gate was opened by St. Peter, 

Who looked astonished when he saw, 

All black, the little man of law; 

But charity was Peter’s guide, 

: he would not o’er pass 

The penitent of any class; 

Yet never having heard there entered 

A lawyer, nay, nor ever ventured 

Within the realms of peace and love, 

He told him mildly to remove, 

And would have closed the gate of day, 
Had not old Flaw, in suppliant way, 
Demurring to so hard a fate, 

Begged but a look, tho’ through the gate. 
St. Peter, rather off his guard, 

Unwilling to be thought too hard, 

Opens the gate to let him peep in, 

What did the lawyer? Did he creep in? 
Or dash at once to take possession? 

Oh, no, he knew his own profession: 

He took his hat off with respect, 

And would no gentle means neglect; 

But finding it was all in vain 

For him admittance to obtain, 

Thought it were best, let come what will, 
To gain an entry by his skill, 

So while St. Peter stood aside, 

To let the door be opened wide, 

He skimmed his hat with all his strength, 


The Church and the Bar 367 


Within the gate to no small length. 

St. Peter stared; the lawyer asked him 
‘Only to fetch his hat,’ and passed him; 
But when he reached the hat he’d thrown, 
Oh, then was all the lawyer shown; 

He clapt it on, and arms akimbo 

(As if he had been the gallant Bembo), 
Cry’d out—* What think you of my plan? 
Eject me, Peter, if you can.” 


And there he remained, it is said, “the black sheep 
of the saintly family!’’ But the whole story, as you 
must know, is a malicious fabrication, for a profession 
that counts priests, bishops, archbishops, cardinals, 
saints, within its ranks need resort to no such subter- 
fuge to enter heaven. To assert the contrary would 
be a libel on all these good and reverend men, and as 
they need no defence from me, upon their merits I 
may rest my case. 





XVII 


ATTORNEY AND CLIENT ! 


the President has said that this is simply a 

“Jaw talk.’’ I have been called upon so fre- 
quently, with the full consciousness of my own short- 
comings, to make addresses, and lectures, and speeches, 
which taxed my sesquipedalia to the utmost, that when 
I am told that I may “talk,” and that all that I possess 
in my vocabulary need not be produced, there is a 
sense of refreshment about it which you younger men 
cannot understand. This is to be simply a conversa- 
tion between you on the one part and myself on the 
other, differing from ordinary conversations only in 
this—that I shall speak and you shall listen. 

It being settled between us that nothing further 
shall be expected of me than simply some desultory 
and informal talk on matters in which we are all inter- 
ested, I shall proceed to say a few words upon the 
subject assigned to me, viz., Attorney and Client. 

You will observe that there are certain topics which 
are always treated jointly. You never read a book on 
“Parent,” or “Husband,” or “Guardian.” ‘It is al- 
ways “Parent and Child,” “Husband and Wife,” 


1 A law talk before the students of the Columbia College Law 
School, January 15, 1892. 


| ET me ask you to note, by way of preface, that 


368 


Attorney and Client 369 


“Guardian and Ward,”’ because it is evident that one 
cannot well be a parent without a child, nor a guardian 
without a ward, nor a husband without a wife; neither 
may he be an attorney without a client. But the client 
does not rush up to you at the first appeal of your 
eager voice. You may have an office, which is a great 
deal of itself, and you may rejoice in a signboard, gold 
and black, and you may take great comfort in the 
possession of a degree from Columbia College, but 
until you have felt the quickening influence of the 
client’s presence, until his coming has aroused your 
dormant possibilities, you can earn no fame, accumu- 
late no estate, and, like the king, you can do no wrong; 
in a word you cannot flatter yourselves that you have 
attained the dignity of a real lawyer. Therefore it is 
that whenever the subject of attorneys is treated, you 
will always find that the “client” is coupled with him 
as in those other subjects that I have spoken of— 
husband and wife, guardian and ward, etc.—although 
I can conceive of the client without an attorney much 
more readily than of an attorney without a client. 

You have all of you read, being students of Columbia 
College, how Prometheus stole the fire from heaven to 
animate the senseless clay; so, too, with the attorney— 
obscurity and despondency are his companions until 
the client, bringing sunshine into the desolate office, 
has given him animation and life, and then together 
they rule the world. 

An exaggeration, you will say, but it is not. No 
great question can be or ever has been settled except 
by arms or by judicial decision, and the judicial func- 
tion can only be exercised when attorney and client 
set the springs in motion. All our political freedom 
and progress depend in a great measure on the fact that 

24 


370 Attorney and Client 


we have attorneys, and that attorneys have clients. 
The majestic figure of Marshall would not loom up in 
our calendar of great judges if attorney and client had 
not appeared hand in hand before him; nor would his 
great and brilliant successors and brethren of the same 
bench have had the opportunity to lay down our 
political landmarks and define the rights of govern- 
ment and citizen but for this beneficent union of the 
two. 

Nothing of any practical value ever has been or can 
be done under our system of government unless settled 
by the law, and the law is powerless until the attorney 
and client together set its machinery in motion, invoke 
its aid, and procure its judgment. 

In spite of this, I feel bound to say that if we look 
to modern or ancient literature, if we study the records 
of the past, we will find that the attorney has always 
borne a bad name, and that his reputation has always 
been of the worst. 

I will presently make a distinction between the at- 
torney and the barrister, but for the present we will 
look at the subject as if they had always been united, 
as they are with us now, under the one name of lawyer, 
or of advocate. English literature is full of allusions to 
the attorney, and invariably depicts him in the same 
colors, shrewd, adroit, unscrupulous; never generous 
nor chivalrous. Writers of fiction, who reflect and 
mould public opinion, have vied with each other in 
describing him in unflattering terms. Quirk, Gam- 
mon & Snap have earned undying fame. Uriah Heep 
will go to posterity, with Tidd’s Practice in his hand, 
known to many who have never heard of Lord Mans- 
field. Some of you may, and others of you who are 
graduates of Columbia must, remember that charming 


Attorney and Client 30% 


ode of Horace, in which he addresses Mercury thus: 
“Mercuri fecunde nepos Atlantis,” and take therefrom 
comfort in the antiquity of eloquence and advocacy. 
But I cannot help observing that he goes on and de- 
scribes him as “callidum quicquid placuit jocoso condere 
furto,” or, as old Smart translated it a hundred years 
ago, ‘a sly practitioner to conceal whatever he chose, 
in merry theft.”’ 

So we find in the Acts of the Apostles that Barnabas 
was spoken of as Jupiter, while Paul was called Mer- 
cury because he was the chief speaker. 

One of the stories of a conspicuous after-dinner 
speaker, whom you all know by name, illustrates this 
tendency. It relates to an attorney by the name of 
Strange who was on his death-bed. He called his 
wife, and he told her that he wanted no inscription 
upon his tomb except these words: “Here lies an 
honest lawyer.’’ She said, “Why is that?” “Well,” 
he said, “nothing more is necessary; when people go 
by they will see the epitaph and they will say, ‘That ’s 
Strange.’ ”’ 

The story, ancient as it is, clearly exhibits the 
prejudice against the attorney,—but it will not be 
necessary to discourage you by multiplying examples. 

I have been unable to find all through history, from 
the earliest days, any kind words for the attorney. 
Perhaps this deep-rooted prejudice may be on the de- 
cline, perhaps not. My own hope is that Columbia 
College will send from her walls men who will drive the 
detractors of the profession to confusion and retire- 
ment. We have often had lawyers, be it said by way 
of consolation, who bore such fruit that they became 
eminent in the church, and in fact in some instances 
have been canonized. For instance, Yves of Chartres, 


372 Attorney and Client 


many hundred years ago, was a celebrated lawyer, but 
for some reason he abandoned his profession and threw 
himself into the Church. He became noted for his 
good deeds, his virtue and his learning (some of it, let 
us hope, acquired at the bar), and finally was enrolled 
among the saints. But justice requires me to add, 
lest we should be unduly inflated by knowing that the 
bar produces such men, that in the office recited on 
that good saint’s day occur these words: ‘“ Advocatus 
sed non latro: res miranda populo!”’ 

So, too, St. Philip Liguori was an advocate con- 
spicuous for his learning and integrity before he 
graduated from the bar to the Church and became one 
of its distinguished doctors. 

Another lawyer who entered the Church made such 
progress therein that in time he became Clement IV. 

We may fairly claim, I think, that the seeds of 
future greatness and of moral excellence were sowed 
in the professional careers of these good men, and that 
the soil was first prepared by diligent pursuit of legal 
studies. 

The first duty of an attorney is, of course, absolute 
loyalty and fidelity to the client. This is the golden 
rule which he must never lose sight of. All personal 
considerations must yield to that. His contract and 
his duty both require it, and he may not omit anything 
within the limits of his own self-respect that can serve 
the client. 

You will observe that there is a distinction, when 
you read the books, between the attorney and the 
counsel, or, as he is sometimes called, the barrister. 

In England they have practically abolished the title 
of attorney, but have preserved the function under 
the name of solicitor. 


Attorney and Client 373 


There are various reasons why the office of barrister 
has been one of increasing importance and dignity. 
The attorney cannot address the court, but must find 
a medium of communication, and a dumb lawyer cer- 
tainly cannot be highly esteemed. His position is 
one of palpable inferiority. If there is any underhand 
work, it is done by the attorney and is often suspected, 
whether it exists or not, by the other side. He sees 
(and may tamper with) the witnessess; he proposes 
the machinations and devices and furnishes the means 
of defrauding justice of her due when any of these 
things are done. Whereas the barrister utters noble 
sentiments, is spoken to by the court, airs his eloquence 
at will, snubs the attorney when things go wrong, and 
dines with the court. Then the law, jealous and sus- 
picious wherever he is concerned, limits the attorney’s 
compensation. How can a client esteem the man who 
is forbidden to charge more than eighteen pence for 
reading or two and six-pence for writing a letter, and 
who grows rich on the multiplication of such items? 

Perhaps this practice of charging small sums for 
trifling services has had as much to do as any other 
one cause with bringing bad repute upon the attorney. 
The temptation to make motions and to take various 
dilatory proceedings for the sake of making costs has 
been a constant source of pettifogging and of conse- 
quent discredit. A certain attorney in a remote sec- 
tion of this State was famous for his vexatious methods 
and grasping anxiety for costs. It was said of him by 
a brother attorney who had, no doubt, smarted under 
his successful efforts to place him, too, under contri- 
bution, that he never prayed for his daily bread with- 
out adding a supplemental petition that it might be 
granted with costs. 


374 Attorney and Client 


Warren, who is chiefly known as the author of Ten 
Thousand a Year, declaims with loud, and no doubt 
justified, indignation against the practice, which he 
found most pernicious in one instance at least, of 
resorting to frivolous objections for the purpose of 
making costs. 

He once had a declaration on a bill of exchange de- 
murred to, because, instead of the words “in the year 
of our Lord 1834,” he had written “a.p. 1834.” Mr. 
Warren says, in his Duties of Attorneys: 


I attended the late Mr. Justice Littledale, at Chambers, 
to endeavor to get the demurrer set aside as frivolous, or 
leave to amend on payment of a shilling, but that punc- 
tilious, though very able and learned Judge, refused to do 
either. ‘‘ Your client, sir,’’ said he, ‘“‘has committed a 
blunder, sir,’’ which can be set right only on the usual terms, 
sir. ‘‘A.D.,’’ sir, is neither English nor Latin, sir. It may 
mean anything or nothing, sir. It is plain, sir, that here isa 
material and traversable fact, and no date to it, sir’’; and 
so forth: whereupon he dismissed our poor summons, with 
costs. That demurrer had been spun out by a pleader to 
an inconceivable length, in ringing the changes on that one 
objection, and my client had positively to pay out of his 
own pocket between seven and eight pounds. Now, was 
not that a dirty, a detestable piece of pettyfogging? Will 
any of you ever descend to such conduct? And take care, 
in your turn, not to expose yourselves to these attacks. This 
‘““a.p.,”’ which I have mentioned, happened to have been 
left standing, because the clerk who drew the declaration 
had been, observe, ‘‘in a hurry,’’ which same hurry cost 
his master between seven and eight pounds. 


This decision upon the letters a.p., thus held not to 
be Latin, adds some zest to a story which I once heard 
from your own president. It seems that a member of 


Attorney and Client 375 


the Brooklyn Board of Education, whether appointed 
by Mayor Low or his predecessor does not appear and 
is not material, was walking in the suburbs of Brooklyn 
with a friend more recently arrived from abroad than 
himself. It happened that they found on their way 
a newly-erected schoolhouse, which bore on its front 
this strange device, “A.D. 1870.’’ “What on earth 
does A.D. mean?”’ enquired the comparative stranger. 
“Oh, that means Annexed District.”” That explana- 
tion might have seemed satisfactory to Mr. Justice 
Littledale; it certainly was not open to the objection 
of being in Latin. 

There is much loose and idle talk about the duties 
of the attorney. Many sonorous maxims are laid 
down by ethical teachers, but the trouble is that the 
maxims are so high and require so much self-denial that 
few will undertake to follow them. In law, as in 
everything else, there are heights that men will some- 
times reach. But general rules are made for the mass 
and are of no value if they require superhuman virtue 
to carry them out. The standard with us is high—it 
must be high; higher, I think, than in any other pur- 
suit. But even attorneys are human. They desire 
to live out of their labor, to provide for their families, 
to lay aside some provision for old age. They will, as 
a rule, prefer wealthy clients to poor ones and will not 
consider themselves criminals because they do not 
always attach a sacerdotal character to their pro- 
fession. But when the character of the profession 
goes down, it is evidence that the community at large 
is on a declining grade, for there has been no time when 
the honor of the profession has not compared favorably 
with that of the most favored pursuits. 

I shall not here undertake to discuss the question 


376 Attorney and Client 


how far, if at all, the great profession of the law has 
abdicated its dignity or surrendered its moral great- 
ness; many, indeed most of the writers, seem to answer 
the question in the affirmative, and mourn over the 
decay of the bar. They may be right, or they may be 
wrong, but it must be borne in mind that as we grow 
older the beauties of the past are touched with the 
glow of the setting sun, and we recall the time—we 
being boys—when things generally were better than 
they are. 

That the former high standard of professional 
decorum and dignity has been to some degree im- 
paired may not be disputed by those who have studied 
the subject. If it be so, various causes may be as- 
signed for the fact, prominent among which are the 
right to sue for fees, the frequency of bargains with the 
client for contingent compensation, and a feverish 
desire, common to every profession in every community, 
to acquire wealth as rapidly as possible. Still we 
hardly deserve to be called, in the vigorous language 
of Judge Sharswood, “a horde of pettifogging, bar- 
ratrous, custom-seeking, money-making lawyers,” al- 
though we shall agree with him that such a class 
constitutes one of the greatest curses that can afflict 
the state. 

Napoleon seemed to consider the legal profession 
somewhat in this light. He was quite willing that the 
lawyers should practise their calling provided they did 
not interfere with him or his business. He once ex- 
pressed a wish that a lawyer’s tongue might be cut out 
if he ventured to use it against the state; a summary 
remedy which the great Emperor never literally carried 
out, although it must be confessed that he showed no 
tenderness to those who were not satisfied that the 


Attorney and Client 377 


victor of Marengo and Austerlitz could rule the country 
without their aid. He became more gentle, be it said, 
in time, for in 1810 he made a decree running thus: 

‘Advocates shall have free scope for the exercise 
of their office in the defence of justice and truth; at 
the same time it is our wish that they should abstain 
from all invention in their facts and from other evil 
practices as well as from all useless and superfluous 
speeches’’; thus evidently aiming at an ideal bar.’ 

I may here cite as bearing upon the ethics of the pro- 
fession two or three of the causes célébres in which the 
duty of the attorney and the limitation upon that 
duty were involved. 

One Cancemi was tried many years ago, in the city 
of New York, for a murder committed in the street. 
He was arrested while fleeing (or while supposed to be 
fleeing) from the pursuit of those who had seen him, 
they said, commit the crime. The case excited a great 
deal of newspaper comment and it became correspond- 
ingly difficult to find an impartial jury. When the 
panel had been exhausted it was found that only 
eleven jurors had qualified and it was then suggested that 
the case might be tried before eleven men. Counsel 
for the defence acquiesced, apparently in good faith, 
and, as I believe, without any thought that they were 
jeopardizing the rights of their client or in any way 
exceeding the limits of their duty. The presiding 
justice was a man of great ability and experience. 
Cancemi was convicted and sentenced to death. The 
point was taken on appeal that counsel had no power 
to make such a concession, that the accused was en- 
titled to a jury of twelve men, and that his counsel 
had no authority to stipulate that right away. The 
point was held well taken by our Court of Appeals and 


378 Attorney and Client 


the judgment was reversed. Cancemi was tried a 
second time, convicted of a minor degree of man- 
slaughter, manifestly a compromise verdict, and, I am 
informed, after serving out his term of imprisonment, 
returned to his country, where he obtained a position 
of distinction. It is now stated and generally believed 
that he was absolutely innocent. 

Much obloquy was thrown upon the counsel be- 
cause, it was said, they had violated their stipulation. 
I do not hesitate to express the opinion that they 
would have failed in their duty if, upon discovering 
their error, they had not frankly stated it to the court 
and asked the court to give their unfortunate client 
the protection to which he was entitled. Counsel in 
a capital case have no right, nor authority, to concede 
anything that jeopardizes the client’s life, and if they 
subsequently discover that they have erred, and that 
a life is to be thereby sacrificed, it is infinitely more 
manly, and more in accordance with the traditions of 
the profession, to throw themselves into the breach— 
to stand the reproach of unreflecting or prejudiced 
persons and to undo the mischief that they have 
ignorantly caused,—than to remain silent. Human life 
is too sacred to be tampered with on the ground of 
etiquette or to be sacrificed because of counsel’s re- 
luctance to confess their fallibility. No one would 
have blamed these gentlemen if they had retired from 
the case and if a new-comer had repudiated the bind- 
ing effect of their stipulation. Was it not more honor- 
able on their part, instead of resorting to such an 
evasion, to lay aside all personal risks, to face the 
difficulty bravely, and do their full duty as they under- 
stood it? 

The great Courvoisier case, in which Mr. Phillips was 


Attorney and Client 379 


counsel for the prisoner, elicited very considerable 
discussion covering a broad range of professional 
duties. Courvoisier was charged with the murder of 
his master, and Mr. Phillips undertook the defence 
under the strong belief that his client was innocent. 
In the early part of the trial, however, evidence was 
developed tending strongly to show that that beliet 
was unfounded. On the second day of the trial the 
accused called his counsel aside and stated that he was 
guilty. 

“Then you propose to plead guilty?’ said Mr. 
Phillips. 

“By no means,” said Courvoisier; * I insist that you 
go on and defend me.” 

Phillips at once said that he would throw up the 
case. His associate, however, insisted that he had no 
right to do so and the matter was privately laid before 
Baron Parke, who very properly advised Mr. Phillips 
that it was his duty to go on and make every fair 
argument in his client’s behalf. The trial was a very 
exciting one and resulted in Courvoisier’s conviction. 

Charges were made against Mr. Phillips: 

First, that he should have thrown up his brief upon 
discovering his client’s guilt; 

Second, that he had invoked Heaven to witness that 
he believed in his client’s innocence; and, 

Third, that he had attempted to throw suspicion of 
guilt upon the other servants in the house, knowing 
them to be innocent. 

As to the first: There cannot be two opinions 
among persons who understand the relation of coun- 
sel and client in criminal cases. If Mr. Phillips had 
abandoned his client’s cause after the trial had com- 
menced, he would have been guilty of a gross breach 


380 Attorney and Client 


of professional propriety. He had taken the retainer 
and he was bound to see that—if his client was con- 
victed at all—it was upon legal evidence, in the absence 
of which he was entitled to acquittal. He ought to 
have known and must have known that this was the 
contract between him and his client, and the only one 
between them. Counsel of his experience should not 
have hesitated one instant upon his course. 

It is a great mistake to believe that there is the 
slightest impropriety in defending a man known by 
counsel to be guilty. It is to the interest of the 
republic that no man should be convicted except upon 
legal evidence, and in such cases it is a matter of public 
policy as well of professional duty that counsel should 
stand between the accused and the prosecuting officer 
in defence of his client’s right to be tried according to 
the law of the land. Counsel are not judges nor 
juries; they are instrumentalities for the administra- 
tion of justice, and justice can better suffer the oc- 
casional escape of a guilty party than to tolerate a 
conviction not sustained by clear legal proof. 

As to the second: The invocation to Providence at- 
testing his belief in his client’s innocence was blas- 
phemous if he knew the client’s guilt; it was in bad 
taste and unnecessary if he did not. His opinion upon 
this point was absolutely irrelevant and should have 
no weight either with court or jury. 

As to the third, viz., throwing suspicion upon other 
parties: Any reckless attempt to injure persons who 
had committed no crime would, of course, be highly 
censurable; but at the same time, if by a fuller cross- 
examination the counsel could show that there was as 
much probability that other persons had committed 
the crime as his own client, it is difficult to hold that 


Attorney and Client 381 


respect for the feelings or reputation of third persons 
should curtail such cross-examination and deprive his 
client of the benefit which he might otherwise derive 
from it. 

Lord Brougham certainly would not have been 
troubled by such scruples if his declaration in Queen 
Caroline’s case as to the duties of counsel was really 
entertained by himself: 


An advocate in the discharge of his duty knows but one 
person in the world, his client, and no other. To save that 
client by all expedient means, at all hazards and cost to 
others, and amongst others himself, is the highest and most 
unquestioned of his duties, and he must not regard the 
alarm, the suffering, the torment, the destruction which 
he may bring upon others. Nay, separating even the 
duties of a patriot from those of an advocate, he must go 
on, reckless of consequences, even if his fate should unhap- 
pily be to involve his country in confusion. 


This is evidently rhetoric—nothing more; but Lord 
Brougham had an object and a meaning. 

The suggestion that the duty of the advocate might 
compel him to throw the kingdom into confusion was 
intended to warn George IV. that if he proceeded with 
his purpose to procure an Act of Parliament freeing 
him from Queen Caroline, he (Brougham) would claim 
that by reason of his marriage with Mrs. Fitz-Herbert, 
a Roman Catholic, his royal Majesty was, for official 
and legal purposes, dead and his throne vacant. The 
threat seems to have been effectual. 

It is not true that the attorney knows but one person 
in the world. 

He is an officer of the court, a servant in the Temple 
of Justice, and as such he is bound to do nothing that 


382 Attorney and Client 


will bring discredit upon the court, his own profession, 
or himself. He should always keep before him the 
distinction between the attorney, who is a representa- 
tive and mouthpiece of another, and his own individual 
self. The two are distinct and should be so kept. 
Many of the difficulties in which honorable barristers 
and attorneys have found themselves arise from ig- 
noring this distinction. When counsel declare their 
personal belief in the integrity of their client, they are 
overstepping the line. What they believe or do not 
believe is of no moment or concern to any one. 

The rules of the ancient avocats of France were akin 
to the rules that governed the knight and were fash- 
ioned after them. The advocate was warned against 
taking just and unjust causes alike, or maintaining 
them by trickery or other disingenuousness; he was 
to respect the court; to be moderate in his charges; 
to make no bargian with his client for part of the 
fruits; he was to aid the innocent, no matter what 
happened to himself; he was to distinguish between 
the right and the wrong; he was to do justice to all; 
he was to reject no man, woman, or child because of 
poverty, or refuse his services to the oppressed. In 
other words, like the brave knight Bayard, he was to 
be without fear and without reproach. 

The attorney has the right to look to his profession 
for advancement, but it isa profession and not a trade. 
The rules of commerce will not apply. He does not 
deal on equal terms with the client. He may not 
drive hard bargains nor take advantage of the client’s 
necessities. He should be a gentleman, which implies 
the doing of his duty and the preservation of his own 
dignity. Let him so act that he will not fear to have 
his conduct published to the world. Let him be 


Attorney and Client 383 


truthful and brave. Let him not be awed in his duty 
by public clamor or by the frowns of judges. His 
conscience must be satisfied and not any other man’s. 
Let him not set up a very high standard in words for 
other people, and follow another for himself. Truth 
and loyalty, if faithfully observed, will carry him 
through many perils. And above all, when he is in 
doubt between two courses, one of which offers him a 
large reward and the other a small one or none, let 
him turn his back on the great temptation, if it in- 
volves the slightest sacrifice of professional or personal 
honor. His self-respect cannot be measured in money. 
And let him so act, if he be one of our brothers, that 
Columbia will look upon him with pride, and hold him 
out as an example to those who have not had the ad- 
vantage of her training nor the privilege of being 
numbered among her children. Let us remember and 
be strengthened by the reflection that, in the language 
of Chancellor D’Aguesseau, our order is as ancient as 
magistracy, as noble as virtue, as necessary as justice. 








XVIII 


THE BAR OF NEW YORK FROM 1792 TO 1892! 


United States, comments upon the exceptional 

position occupied by the bar in the United 
States, and concludes that the profession in our country 
constitutes an aristocracy. In one sense, probably the 
one in which it was intended, the remark is true. In 
every free country the bar constitutes, and necessarily 
must, an order of unusual importance. Its function 
in peace is similar to that of the army in war, viz., to 
defend society and to guard the general welfare. 
Whether special privileges are, or are not, conceded in 
terms to such a body of men, enlightened opinion must 
realize its value and rely upon its service. It is the 
natural organ by which outraged law protests against 
tryanny, whether from above or below; the sentinel 
and advance post which signals danger and warns the 
community of impending peril. The chosen men who 
gather around a monarch as the fountain of honor, 
shine with reflected lustre because of their proximity 
to the royal person. So it is with the bar. Its mem- 
bers and they alone can serve in the Temple of Justice 
and see that due reverence is paid to the only recog- 
nized sovereign, the Law. To be the mouthpiece of 

1 Written for the New York Press, Oct. 9, 1892. 

384 


Fou De Tocqueville, in his great work on the 


Bar of New York, 1792 to 1892 = 385 


that sovereign, to expound his decrees, to stand firmly 
by his throne, to protect his dignity, this is no mean 
function. Take away the sanction of the law and 
nothing is left in Pandora’s box, least of all freedom, 
for freedom without law ceases to be anything of 
value. It changes its name and is not worth pre- 
serving. The history of free government shows the 
truth of this so clearly that illustration drawn from 
past records becomes unnecessary. Whether an un- 
wholesome transition has not already begun is another 
and far different question. 


Government Chiefly by Lawyers 


It may be that plutocracy is gradually displacing 
the profession of the law. There are signs that point 
in that direction, but thus far the peril has only been 
a threat and not a reality. With scarcely an exception 
every president of the United States has been a lawyer 
by profession; the two candidates now before the 
people have been eminent as members of the bar; 
senators and representatives are almost universally 
trained and reputable lawyers, and if it be true that a 
practice has of late years been growing, in remote 
States, to confer high legislative office on men of 
wealth because they are able and willing to pay for the 
privilege of serving the public, these are but rare ex- 
ceptions. We may still truly say that the government 
of the United States for the last one hundred years has 
been in the hands of the legal profession. As we have 
prospered and grown on a scale of greatness heretofore 
unknown, it may not be a reckless instance of deduc- 
tive reasoning to suggest that government by law, as 
administered by lawyers, is the best that has thus far 


25 


386 Bar of New York, 1792 to 1892 


been tried. Some persons, in other respects rational, 
claim that our progress is due to paternal government 
protection. It may be curious to speculate upon the 
effect of a possible combination of free trade and 
lawyers in office as common factors in the future 
prosperity of our country, but this would be foreign 
to my purpose. 

True, Washington was not a lawyer, at least so far 
as I am informed. Probably there were many occa- 
sions in which this chasm in his early training was to 
him a source of deep but unavailing regret. But the 
necessity for a legal training was not as obvious in his 
day as it has been since his great service to the nation. 

The seeds of our revolution were sown and cultivated 
by the lawyers, who plainly saw that the struggle must 
come. The young giant was stretching his long and 
awkward limbs and fretting at the shackles which 
bound him and checked his growth. He was uneasy, 
then impatient, and finally angry. He was slow to 
wrath, but when he was at length moved to righteous 
indignation, the lawyers told him why he was justified 
in his complaints; they taught him the duty of re- 
sistance; they encouraged him in its assertion; they 
instructed him as to his rights, and helped him, by 
voice and pen, and often, too, with musket and sword, 
to vindicate his dignity by claiming his independence. 
Years before the war broke out the lawyers of Boston 
and of New York had formed societies to discuss the 
great questions that agitated the public mind. The 
Sodality of Boston was one of these: composed not of 
striplings trying their young voices on their neighbors 
and practising their arts on open-mouthed rustics, but 
men of years and standing, like John Adams and James 
Otis; earnest, thoughtful, patriotic, and wise men, 


Bar of New York, 1792 to 1892 387 


who might well assume to act as_ self-constituted 
pedagogues of a young and rising community. The 
“Moot”? was another, which had its headquarters in 
New York, and consisted of the ablest lawyers of the 
State. Their debates were of great importance, and 
their opinions so highly valued that counsel often cited 
them as bearing upon, illustrating, and establishing 
the law. In one case it is recorded that the chief 
justice of the State of New York referred a difficult 
point of law to the Moot for its opinion. 


Lights of the Bar Long Lost 


There were many conspicuous men at the bar as the 
last century closed and the present one displaced it— 
men of unsurpassed ability and independence of char- 
acter. The war that had just ended was a training 
school that kept its influence for many years, indeed 
until the next conflict revived the warlike spirit and 
made the peaceful disputes of the forum seem tame and 
unprofitable. 

What young lawyer of to-day has ever heard of 
Egbert Benson, Brockholst Livingston, John Lansing, 
Melancthon Smith, or Josiah Ogden Hoffman? And 
yet they were learned, eloquent, honorable, and pa- 
triotic men. They were giants while they lived, and 
did much to settle important questions for the genera- 
tions to come. They served the public as well as their 
clients faithfully and well, but the lawyer’s fame is 
evanescent as the speech that makes it. His con- 
temporaries bear testimony to his merits, but when he 
has passed from the scene of his labors, his glory sleeps 
with his perishable body. 

Seeming exceptions there are to this, but only 


388 Bar of New York, 1792 to 1892 


exceptions in appearance. The names of the two 
greatest lawyers, the acknowledged leaders of the bar 
of one hundred years ago, still live, but only because 
the men who bore them have entered into history in 
a public capacity, and because their names are bound 
together in one bloody tragedy. Alexander Hamil- 
ton and Aaron Burr were the leaders in their day. 
Hamilton especially enjoyed an undisputed title to 
pre-eminence. Chancellor Kent, in an address de- 
livered in 1836, speaks of him in terms of unstinted 
admiration. 

Among all his brethren [he says], Colonel Hamilton was 
indisputably pre-eminent. This was universally conceded. 
He rose at once to the loftiest heights of professional emi- 
nence by his profound penetration, his power of analysis, 
the comprehensive grasp and strength of his understanding. 
and the firmness, frankness, and integrity of his character 
We may say of him in reference to his associates, as was 
said of Papinian, Omnes longo post se intervallo relinquerit. 


Such praise as this, coming from such a source, is 
sufficient to place Hamilton on the pinnacle of pro- 
fessional fame; but it is the gallant soldier, the friend 
of Washington, the writer of the Federalist, the founder 
of our financial system, and the victim of Burr’s pistol 
who is really recalled by tradition and who will be 
remembered by remote posterity. He might other- 
wise be discovered only by the patient explorer into 
those musty records that history half scornfully 
glances at, to mitigate the dryness of more important 
themes. Who, for instance, will know or care to know 
a generation hence that another Hamilton made the 
great speech in Zerer’s case, and argued with success, 
fifty years before Erskine, that the jury in a libel case 
were the judges of the law as well as the facts? 


Bar of New York, 1792 to 1892 389 


Nor can it be said that Burr’s name would arouse an 
echo of even passing interest but for the part he took 
in great events, wherein he showed his consummate 
ability and absolute indifference to principle. As the 
would-be usurper of the presidency, as Jefferson’s vice- 
president, as the defendent in a great treason trial, and 
as the slayer of Hamilton, his place is fixed forever 
beyond the destructive processes of time. Unfor- 
tunately for him, if there be such a thing as posthu- 
mous misfortune, he will not be forgotten. 

These two men, great lawyers as they were, cannot, 
therefore, be cited as exceptions to the rule. If they 
had been engaged in the manufacture of tin plate they 
would have been equally Gf not more) conspicuous, 
provided other elements of their fame had concurred 
to make them prominent. 


A Story of Livingston 


One of the most eminent of the lawyers whom I have 
named, Brockholst Livingston, became chancellor of 
the State, and subsequently a justice of the Supreme 
Court of the United States. Mr. Hunt, in his charming 
biography of Edward Livingston, narrates an incident 
m the chancellor’s life which is very characteristic of 
the times, and for that reason deserves repetition here. 
It seems that Mr. Livingston was a bit of a wag—this 
was, of course, before he was placed on the bench— 
and amused himself on a certain occasion in writing an 
account of a political meeting which had been at- 
tended by some of his political adversaries. These 
he sought to turn into ridicule. His raillery seems to 
us at this day quite harmless. He spoke of a Mr. Fish 
as a Stripling about forty-eight years old, and of a Mr. 
Jones as “ Master Jimmy Jones, another stripling about 


300 +~=—s Bar ‘of, New ‘York, 1792 ‘to 1992 


sixty.’ Why Messrs. Jones and Fish should have 
resented so mild a form of pleasantry does not appear, 
but they did feel very deeply whatever sting there may 
have been in these mysterious imputations. They de- 
manded an explanation of Mr. Livingston while he 
was walking on the Battery with his wife and children. 
The explanation does not appear to have suited Mr. 
Jones, who proceeded to chastise Mr. Livingston with 
a cane, whereupon Mr. Livingston became, in his turn, 
dissatisfied and gave evidence thereof by challenging 
and killing Mr. Jones; after which performance he felt 
at liberty to resume his promenade, en famille, on the 
Battery, which he did without further molestation. 
Mr. Jones having been removed in this summary but 
orthodox fashion, there was nothing to prevent Mr. 
Livingston from reaching high political preference. 
He accordingly became chancellor, and shortly after a 
justice of the Supreme Court of the United States. 
This gentle toleration of a duellist who had killed an 
adversary is in striking contrast with the treatment 
of Burr after he had killed Hamilton. Certainly the 
provocation in the latter case was real, the fashion of 
duelling was still recognized as a legitimate mode of 
settling differences between gentlemen, both men were 
tried and brave soldiers, accustomed to face death 
without flinching, and the fight was a fair one, in 
which the regular forms were minutely observed. 
And yet Burr became practically an outcast, and spent 
the balance of his life in friendless solitude. He was 
punished for his other offences; not for the venial sin 
of duelling. The man whom he happened to kill was 
an eminent citizen, honorable and respected. If Ham- 
ilton had slain Burr his own social and professional 
standing would probably have remained unimpaired ; 


Bar of New York, 1792 to 1892 = 391 


possibly it might have received something of increased 
dignity. But Hamilton enjoyed a good character and 
Burr did not. The moral of this seems to be that be- 
fore a man determines to commit an offence against the 
law, he should be sure that his character is good. If 
his character is bad the risk is greatly enhanced. The 
jury or the public, as the case may be, will convict 
him of something. Sir Jonah Barrington assures his 
readers that a man was once convicted at the Irish 
Assizes of murder, although the victim came into 
court apparently alive and ready to swear that he had 
not been killed. The jury was then about retiring, 
and, in spite of the judge, did so. They explained 
their verdict of guilty by saying that, while they knew 
that he had not killed that particular man, they also 
knew that he had stolen a cow that belonged to one 
of the jurors and they might not find another and so 
good a chance to hang him. 

It is, of course, the fashion to decry the bar of to-day 
and to cite illustrious examples in the past to shame 
the advocates and practitioners of our own time. But 
this is natural enough; at least it has been universal. 
Those who look back upon the men and things of a past 
generation, to which their own life was linked, the 
memory of which comes back with the joyousness of 
departed youth, will always find a fitting theme for 
mournful retrospection in the degeneracy of the times. 
Imagination uncontrolled joins hands with vain regret; 
the harsh contours of unpleasant fact are smoothed 
into beauty by the softening process of uncounted 
years and grow beautiful in proportion as our vision 
grows dim. Chancellor Kent himself indulged in this 
pessimistic fashion of reviewing the past. In the 
lecture above cited, he mournfully descants upon the 


392. ~+Bar of New York, 1792 to 1892 


“tendency of things at present to disenchant the pro- 
fession of much of its attraction. The spirit of the 
age,” he says, “is restless and presumptuous and 
revolutionary. The rapidly increasing appetite for 
wealth, the inordinate taste for luxury which it en- 
genders, the vehement spirit of speculation, are so 
many bad symptoms of a diseased state of the public 
mind.’’ Who would have believed that our profes- 
sional forerunners were afflicted with such fearful 
propensities? Good, great, venerable gentlemen we 
supposed them to be, eminently respectable from the 
top of their bald heads to the soles of their gaitered 
feet, moving with decorous deliberation from their 
shabby office to their uptown residence in Prince or 
Houston street for dinner, returning to work until 
supper time, unmolested by telephones, undisturbed 
byitelegrams, ignorant of messenger boys, living in 
happy though unconscious immunity from stenog- 
raphers, interviewers, law reporters, daily law journals, 
and other sources of unhappiness. To think that the 
virus of avarice, gambling, selfishness and the like had 
polluted their simple and virtuous natures! Perhaps 
we may be better than they after all, for we have to 
contend against all these insidious foes, and yet we 
still exist as a body and upon the whole may claim, in 
comparison with the rest of the community, to con- 
stitute a very respectable class of citizens. 

Whatever may have been the merits or shortcomings 
of the bar when Chancellor Kent spoke thus mourn- 
fully, there was a class of young men coming to the 
front than which the history of our bar offers nothing 
more admirable. From 1835 to 1870 our roll was 
bright with splendid names and our courts filled with 
life and learning. Cutting, with his splendid presence 


Bar of New York, 1792 to 1892 393 


and perfect mastery of the commercial law; George 
Wood, the massive expounder of all the learning that 
related to trusts and real property; Evarts, polished, 
self-possessed, keen-witted, the hero of the three great 
cases of our generation—the Johnson impeachment, 
the Tilden election case of 1876, the Geneva arbitration 
case; Fullerton, the peerless examiner and cross-ex- 
aminer,—both of these last still ready with memory 
intact to tell of the great battles which they fought 
and the giants that they met; David Dudley Field, 
aggressive, earnest, impressive, relentless, and like 
Achilles that Horace describes: 


Impiger, tracundus, tnexorabilts, acer. 


He, too, is still among us in the radiance of an un- 
dimmed intellect, to show of what material were made 
the men whom Chancellor Kent looked upon with such 
mournful suspicion. ‘‘Prince’’ John Van Buren, too, 
who covered up his real genius with a cold affectation 
of cynical indifference and lived to be the putative 
father of numberless sayings from Aristophanes to 
date; William Curtis Noyes, ever courteous and ever 
ready, diligent and indefatigable until the overstrained 
cords suddenly snapped while he was still in his prime; 
and James W. Gerard—‘ Jimmie” to his friends— 
with the polish and wit of his French ancestry, his 
inexhaustible bonhommie and good nature, his irresist- 
ible facility and felicity in winning juries over to the 
wrong side, on which he was most at home. “ Never 
attack your adversary with a bludgeon,” the writer 
once heard him say, “run him through with a rapier.”’ 
He lived up to his own precept. He ran his adversary 
gracefully and thoroughly through the vital parts, and 
when he was sure that his victim was thoroughly dead 


394 Bar of New York, 1792 to 1892 


he held out his hand to help him to his feet. And 
Benjamin D. Silliman, the veteran of sixty odd years’ 
practice, still ready to counsel his many clients, to un- 
ravel intricate knots of law, and to delight hosts of 
friends with his winning smile, his wise speech, his 
kindly judgments of men long since gone. Time, alas! 
will not let my willing pen run on to tell of so many 
others whom the young bar of my generation looked 
upon with something akin to superstitious admiration. 
A volume would hardly suffice to tell of their virtues 
and their frailties,—for it is a comfort to think that 
they, too, were human. 

The question is often asked: Who is the greatest 
lawyer you have known? If the interlocutor would 
explain what he means by the term “lawyer” the 
answer could be made more readily and easily than 
without such an explanation. I could name several 
men who answer this superlative description. But 
the qualities that make up a great lawyer are so 
diverse that the question might be objected to as 
vague and indefinite. 

Charles O’Conor was the greatest lawyer that my 
generation has known, in one sense of the word. He 
was thoroughly imbued and saturated with the law, its 
principles, and its philosophy. He exuded law learn- 
ing as some men are said to radiate goodness. If the 
law had been an inflammable substance he might have 
been expected to perish in a blaze of spontaneous 
combustion, the material being furnished from the 
essence of numberless tomes which he had perused and 
digested. 

The reports, textbooks, treatises, briefs, essays on 
the subject of the law which he had assimilated would 
in their original form have heated the baths of some 


Bar of New York, 1792 to 1892 395 


modern cities as long as the baths of Alexandria were 
kept in operation by the volumes that a ruthless 
barbarian conqueror turned into fuel. 

To build up a clean-cut, technical case was as much 
an object of love to him as the erection of a temple 
would have been to an architect of old Athens. Logic 
was his constant companion and friend. Rhetoric he 
looked on with suspicion, and if at times he did allow 
himself to be drawn away from the mathematics of his 
profession, it was only a short-lived truancy. He did 
show in these brief moments of infidelity to his stern- 
browed mistress that he might enter the lists with the 
best sophists of them all and gather laurels with them 
on the slopes of Hymettus or Parnassus. But he soon 
tired of the flowers that he picked and flung them 
aside, as though weaving garlands were beneath his 
dignity. 

To put it in plainer prose, he sometimes gave me the 
impression that he was reining in his fancy, lest it carry 
him away. It was a disappointment, and I longed to 
see him lose his self-control and give a free field to his 
imagination, and a touch of the spur to the poetical side 
of his genius. But he never yielded wholly to the 
temptation. He rode back in season to the beaten 
track and grappled with court and jury on the pro- 
saic ground of hard, practical sense and absolute 
demonstration. 

As a lawyer, and simply a lawyer, he was great. If 
he had allowed himself to be an orator besides, he 
probably could have done so. Imagine Demosthenes 
with no Philip to denounce, and making it his business 
to elucidate the law of trusts, and to make contingent 
remainders intelligible, you have my idea of Charles 
O’Conor. I may add that some of his philippics are 


396 Bar of New York, 1792 to 1892 


still extant, and you feel sorry for the modern Philip 
when you read them. 

If, however, you mean by the greatest lawyer the 
most persuasive, the most delightful, charming, fas- 
cinating, and irresistible of men, then you must take 
Ogden Hoffman. He may not have been great at be- 
sieging strongholds. He may not have understood 
counterscarps, circumvallations, redoubts, and the like. 
I really believe he could not have captured Alesia 
two thousand years ago as Caesar did; but when it 
came to storming the jury box, to sweeping away 
intervening obstacles in spite of all the rules of war— 
except those that rested on honorable carriage—Ogden 
Hoffman was the chief of them all. 

His onslaught was simply irresistible. He was in 
the jury box with the jurors telling them what to do, 
and they obeyed him, before the case was out of the 
judge’s hands. He charmed men from their deter- 
mination, as Apollo with his lyre drew the oaks by the 
roots from their mother soil. He hypnotized and 
wrought a spell about them. His voice was like a 
silver flute in the hands of an enchanter. And it was 
all done so modestly and gently and courteously that 
really it was not fair to the other side. 

Fortunately for the administration of justice, nature, 
in giving Hoffman such possibilities of wrong-doing, 
had limited his capacity for mischief by a double and 
very effective infliction: he was lazy, and he was a 
gentleman. He would never willingly harm a human 
being, even if it could be accomplished without labor, 
because he was a gentleman. And as for doing a 
wrong or anything else to any one where labor was 
involved,—he scorned such baseness. He was incapable 
of thus flying in the face of the good fairy who had 


Bar of New York, 1792 to 1892 397 


lovingly endowed him at his birth with a splendid fund 
of unconquerable laziness. 

James T. Brady completes the trio of great lawyers 
whom I have known. Perhaps he was the most richly 
endowed of them all. He was a man of intense per- 
sonality. His massive head with the deep-set eyes, 
his charming smile and winning ways, his exquisite 
command of language, his wit, his fancy, his eloquence, 
his genius, were his, and the union his alone. On the 
whole, take him altogether, he was second to none. 
Had he chosen he might have been first. 

But there was a cui bono note in his efforts before 
court and jury that handicapped success. Except in 
great cases, especially criminal cases, he seldom called 
out his reserves. He fought his battle with a light 
brigade, as it were, and made use of a brilliantly uni- 
formed cavalry when less picturesque allies might be 
necessary. But you knew that he had his forces be- 
hind him, and when he did take upon himself the re- 
sponsibility of a human life he was inimitable and 
never failed to do his best; and more than his best no 
man could do. Ina word, Brady was one of the few 
lawyers of those I have known who deserved to be 
called a genius. 

The impression that he left on the mind of his 
juniors was that he could do anything—if he only cared 
totry. He might have commanded an army or written 
an epic poem if he had settled down doggedly to work. 
But such men do not set doggedly to work. Nature’s 
partiality to her chosen children does not often go so 
far as to hatch genius and industry from the same egg. 

Have these left successors worthy of themselves? 
Certainly they have. The bar is now as firm as it ever 
has been in the possession of learned, upright, sagacious 


398 Bar of New York, 1792 to 1892 


and honorable members. We are too near them now 
to judge them fairly, but we may feel assured that the 
young men of to-day will, after their hair has turned, 
recall the broad and scientific arguments of Carter, 
the brilliant versatility of Choate, the deadly keenness 
of Parsons, the scholarly erudition of Butler—nay, the 
splendid qualities of a host of others whom it would be 
tedious and invidious to single out; they, too, will 
rank with the best examples of what our profession has 
produced. But until their work is done who can tell 
what material will appropriately serve to preserve 
their memory? Shall it be enduring bronze or brittle 
clay? You may safely call no man happy, nor great, 
nor good, nor wise until he has turned his back forever 
on friends and foes alike. 











XIX 


THE LAWYER’S RESPONSIBILITIES — LAW REFORM— 
CODIFICATION ! 


of young lawyers be allowed to start upon its 

mission of mercy and benevolence without 
being first subjected to an address. It may be an 
exaggeration to liken this process to that of vivisection, 
but the two have this in common: that, while the 
benefit to be derived by the sufferer in each case is un- 
certain, the chief operator usually enjoys and protracts 
the pleasure of the performance. 

There is a poetical fancy, perhaps, at the bottom of 
this ancient usage, which suggests that the parting 
words addressed to the eager beginner by the learned, 
venerable, and ponderous sages of the bar who gener- 
ally perform these functions, may have been intended 
to take the place of the happy-omened slipper that is 
thrown after those who enter upon the cares and duties 
of matrimonial life, or at least that the oration with 
which you are served may take the place of the kindly 
horseshoe which, attached to the door of the new 
building, brings luck to its fortunate possessor. Let 
this be the spirit, at least, in which my duty to you is 
now performed; and be assured that were I to go 


RR et young tan tradition requires that no body 


1 Address to Graduates of Columbia College Law School, 1884. 
399 


400 The Lawyer’s Responsibilities 


through a literal performance of either of the acts 
above alluded to, I would not wish you success more 
warmly than I do. 

There is another, and, perhaps, truer theory which 
accounts for our relative positions to-night. Learned 
as your wise and distinguished instructors, aided by 
your industry, may have made you, it is barely possible 
that you may not yet know all that you should be in- 
formed of before undertaking the practice of the best 
and noblest of professions. Upon this theory a final 
address is vouchsafed you to round off the imper- 
fections, to supply the deficiencies, and to complete 
the general character of your professional education. 
This, you will observe, places upon us a double re- 
sponsibility, the result of which will be to create on 
my part a selfish interest in your welfare. A large 
share of your future professional success will be 
claimed by me; as to those who may prefer to fail or 
faint by the wayside, or wander into other pursuits, I 
shall comfort myself with the reflection that they were 
careless or forgetful listeners. 

If there is one point to which your earnest and last- 
ing attention should be called it is, I think, the real 
greatness and importance of the profession upon which 
you are about to enter. Leaving out of question the 
sacred profession, I am very sure that there is more 
honor, more truth, more charity, more trustworthi- 
ness in our ranks than in any other calling whatever. 
We can hardly expect others to admit this proposition, 
much less to proclaim it on the housetops, but I doubt 
if any fairly intelligent and experienced man would 
question it if put upon his oath, with an honest fear of 
the Lord before him. That there is a popular prejudice 
the other way may well be admitted. Wit—like any- 


The Lawyer’s Responsibilities 401 


thing else that is much sought after and rarely found— 
must exist in a cheap form to be within the reach of all, 
and it is well established that the cheapest and most 
popular form is that which is aimed at the bar. For 
this, many reasons may be assigned, the chief of which 
is based upon the very superiority which we so justly 
claim. Foote, an English actor, used to tell his pro- 
vincial audiences that when an attorney died in Lon- 
don they never buried him. They simply placed the 
body by an open window in the evening. In the 
morning the body would be absent, and nothing to in- 
dicate the manner in which it had been removed except 
a most suggestive odor of sulphur. Although I am not 
called upon to defend the members of a foreign bar, I 
do not hesitate to declare this a malicious invention. 
But even if it were true, I would ask whether, when 
the attorney’s clients died, the only reason that pre- 
vented their disappearing in like manner, and with like 
results, was not thefact that the window was kept closed? 

For you will observe that there is this peculiarity to 
be noted in most of the cases where one of us falls from 
his high estate. While the merchant, banker, broker, 
tradesman, commits wrongs and frauds for his own 
benefit and on his own account, the lawyer acts in a 
vicarious character. His misdeeds usually go to fill 
the coffers of some sleek Pharisee, who pockets the 
advantages, disputes the bill of costs, and then thanks 
the Lord that he is not like one of the sinful lawyers 
whom he has used to such good purpose. I advise his 
friends to close the window when he dies; there may 
be nothing in Foote’s story, but it is well to be on the 
safe side. 

Again, you will notice that in almost every con- 


troversy we are compelled to take our client’s story. 
26 


402 The Lawyer's Responsibilities 


Some clients, I am informed, will lie even to their own 
counsel. My good fortune has kept me from any such 
clients, but I have observed, in many instances, that my 
opposing brethren were laboring under that disadvan- 
tage, and were grossly deceived as to the facts and 
merits of the controversy in which they were engaged. 
But that is inseparable from the profession. All that 
can be expected from the advocate is that he will 
never, under any circumstances, be a party to deceiving 
the court. When he states the facts or presumed facts 
of a case, he is but the mouthpiece of another person, 
and upon that person must fall the responsibility of 
the statement. If he goes beyond that, his responsi- 
bility begins. 

I suppose that it may be truly said, as an abstract 
proposition, that in your profession honesty is the best 
policy; but I should feel ashamed of that profession if 
it were necessary to make you honest by recalling the 
benefits that you may receive from an observance of 
the decalogue and the Revised Statutes. The lawyer 
who starts in life with this motto to guide him is not 
fitted by nature nor by his moral education to enter 
a profession which requires a high standard of personal 
honor and dignity. He would do well to turn his 
attention to commercial pursuits, where it may be 
necessary to keep in view that principle when he is 
tempted to adulterate his coffee or to dilute his whiskey. 
I fear that such a one will sometimes, in emergencies, 
doubt the uniform applicability of the rule, and will 
abandon it when it ceases to produce an adequate 
return. 

For you will soon discover that the high character 
of your calling will not be satisfied with this “ honest’’ 
policy. To be honest in the ordinary sense, 7. ¢., not 


The Lawyer’s Responsibilities 403 


to lie, to cheat, to defraud, is of course essential, but 
you will fall very far short of the proper standard if 
you do not require of yourselves far more than this. 
A nice and scrupulous sense of honor,—which is as un- 
like mere honesty as the fine Damascus blade is unlike 
a farming implement,—a keen sensitiveness in the pro- 
tection of others’ rights even against yourselves, a 
proper contempt for everything mean, unmanly, and 
ungenerous, these should be your ideal of professional 
requirements. And as for honesty, the time to be 
honest is when it is not the best policy; the veriest 
knave will be honest where he sees his profit in fair 
dealing. 

To what exalted positions the pursuit of this ideal 
will lead, you have all recently seen. Charles O’Conor, 
the leading member of our state and national bar, died 
full of years a few days since. He was known only as 
a lawyer, but in that character he had been conspicu- 
ously great. Scornful of all meretricious arts to win 
popular applause, tenacious of his own opinions, even 
when they were opposed to the general sentiment, 
seeking no preferment through political sources, living 
a secluded and abstracted life, he yet won such fame 
for himself that not only his brethren and the courts 
in which he practised deplored his loss, but all classes 
of citizens united in doing him honor. It was less, I 
think, to the brilliancy of his attainments that the 
tribute was paid than to the upright, truth-loving, 
self-respecting gentleman whose long record con- 
tained no stain. Fearless in all his battles, seeking 
victory only by honorable means, like the old chevaher 
who died at Sesia, he might well have borne upon his 
escutcheon the motto Sans peur et sans reproche, 
Fancy Charles O’Conor being honest because it paid! 


404 Law Reform 


There is a danger, however, against which I cannot 
too earnestly warn you in connection with these 
generous aspirations. Let nothing tempt you to be- 
come professional reformers. If you do, you will prob- 
ably inflict more evil upon your profession and upon 
society than your whole lifetime can atone for. I do 
not, of course, mean that when you discover a real 
mischief in the administration of justice, you shall not 
try to correct it—certainly it will be your duty to aid 
in the amendment of the law where your experience 
teaches that it is deficient; but I do mean to warn you 
against that not uncommon egotism which prompts 
men to think themselves wiser, greater, and better 
than all other men of their age and country. When 
this delusion seizes upon its unfortunate victim he is 
ready to drive his Juggernaut ruthlessly over every 
obstacle that may stand in his way, and in most cases, 
if he does fail to do untold mischief, it is because his 
ability to subvert and destroy is not equal to his desire. 
Fortunately the conservatism and common sense of our 
profession and of the community stand in the re- 
former’s way and he is generally repulsed by their 
combined force. 

The most dangerous and radical shape which reform 
has assumed of late years is known under the alluring 
name of Codification, z.e., the reduction of all our laws 
and the decisions of our courts to the bulk of a small 
volume, intended to place within the hands of every 
man, woman, and child in the state the means of ascer- 
taining his or her rights upon any given subject. This 
is a charming scheme, but of course no lawyer believes 
it to be practicable. If he does, he has not read the 
proposed civil code which has been diligently and 
persistently pressed upon the attention of the Legisla- 


Codification 405 


ture during the last four or five years. This subject 
is so important that I may detain you a few moments 
more before abandoning it. 

As there are no two objects in nature that are pre- 
cisely alike, so there are in the practice of law no two 
cases precisely similar. This truth is self-evident. 
When you make ironclad rules, you cannot reasonably 
expect them to fit every conceivable case. Indeed, 
you are apt to find that the majority of cases pass 
through the rule because of the imperfection of the 
language in which that rule is expressed, or the real 
impossibility of covering even the generality of the 
cases contemplated. Hence the danger of a code; 
hence, too, the advantages of the common law. The 
former deals in rules more or less accurately stated, 
and which must fit the given case or be discarded. 
The latter deals in general principles, which may be 
applied to any case which those principles may reach. 
Thus, the common law is adapted to an expanding 
condition of society, where new conditions are con- 
stantly created, and which no written code can be ex- 
pected to provide for. 

The clamor of the few but active persons who advo- 
cate this revolutionary measure is based chiefly upon 
the pretence that a code would give us certainty in the 
administration of the law. Any scheme that would 
make the administration of justice certain, or even 
improve upon its admitted uncertainty, would be most 
desirable; but no lawyer who reflects upon the subject 
can doubt that the already unfortunate uncertainty 
would be increased tenfold. This is one of those 
points as to which reasonable men have no right 
to differ, because they have to guide them not only 
abstract reasoning, founded upon general rules of 


406 Codification 


experience and common sense, but they know what the 
result of codification has been in our own State, in our 
own time. The same eminent gentleman who is now 
seeking to press the State of New York among his 
followers in this line of so-called improvement once 
prepared a Code of Practice, which was to simplify 
our procedure, avoid expense, and prove a millennium 
for suitors. That the attorneys who practised under 
it, especially in the days of its youth, reaped very rich 
rewards at the expense of their clients, no man can 
deny; if it was his beneficent object to improve the 
financial condition of his less fortunate brethren, that 
object was liberally carried out. But we have a ghastly 
monument before us, in the shape of hundreds upon 
hundreds of volumes of law, in which learned and ex- 
perienced judges manifest their inability to understand 
what the simplest provisions of that code were intended 
toconvey. Whether six weeks meant forty-six days or 
thirty-seven; what constituted and what did not a valid 
service of a summons—these and other portentous 
matters divided the courts for a quarter of a century. 
Our overworked judges were obliged to neglect matters 
of infinite importance in order to settle petty disputes 
which involved at best ten dollars costs; and, finally, 
after this quarter of a century had elapsed, and these 
volumes had been filled, and the legislature had de- 
voted itself to pruning, amplifying, obliterating, and 
amending for almost a generation of men, the whole 
scheme was blotted out and a new one substituted; 
this, in its turn, to undergo the same probationary ex- 
istence. After such an experience as this, who can in 
good faith pretend that a scheme which goes to the 
very foundation of our existence as a people, which 
enters every home, interferes in every workshop, dis- 


Codification 407 


turbs every relation of life, brings up new questions 
between husband and wife, father and child, master 
and servant, seller and buyer, will not create a dis- 
turbance infinitely more alarming than that to which 
I have alluded? That it will take many years of 
litigation to settle the meaning of every important 
section of this proposed code is as absolutely certain 
as anything in the future can be. And in connection 
with this let me fortify my statement, lest I be deemed 
partial, by a reference to what Blackstone has de- 
nounced as “the efforts of rash and unexperienced 
workmen to new-dress and refine the common law of 
England with the rage of modern improvement; for 
to say the truth’’—he adds—‘‘almost all the niceties, 
intricacies, and delays (which have sometimes dis- 
graced the English as well as other courts of justice), 
owe their origin not to the Common Law itself, but to 
innovations that have been made in it by Statutes.” 
Sir Edward Coke, ‘that great and well-experienced 
judge,’ as Blackstone calls him, declares that “in all 
his time he never knew two questions made upon 
rights merely depending upon the Common Law,” 
and he warmly laments ‘“‘the confusion introduced by 
ill-judging and unlearned legislators.’’ What would 
he have said if he could have seen our legislators ad- 
vocating a scheme subversive of all our landmarks, 
while at the same time proclaiming and almost glory- 
ing in the fact that they have never examined it! 

But there appears to me an overwhelming objection 
to the code, and that is the facility with which it will 
be tampered with by inexperienced legislators. As 
one commentator says, ‘‘It is perfectly amazing that 
there should be no other state of life, no other oc- 
cupation, art, or science, in which some method of 


408 Codification 


instruction is not looked upon as requisite, except only 
the science of legislation, the noblest and most difficult 
of any.” It is true that there are exceptions to this 
rule, and our State is fortunate enough to possess in 
its Legislature some experienced and able men who 
stand in the way of such schemes. But how long 
their influence will continue to thwart and baffle these 
wild projects, no man can tell; and unless our whole 
profession, and some part, at least, of the lay com- 
munity, is aroused to the danger that it runs, we may 
expect, under the pretext and the fallacious cry of 
““Reform,’’ a condition of chaos and confusion com- 
pared with which our present condition is absolute 
perfection. 

In making these remarks, which may seem to be 
overstrained, I have not in detail alluded to the pro- 
posed plan of legislation known as the Civil Code, a 
plan that has been pressed by its able and distin- 
guished author year after year with most admirable 
tenacity. But if you will take upon yourselves to 
examine and carefully study it, together with some of 
the comments that have been made upon it, you will, 
I am quite sure, come to the conclusion that I have 
not overstated the danger that threatens us. Even 
the women and children are deeply concerned in pre- 
venting its passage, as they may find from reading two 
or three of its clauses. Thus it is solemnly declared 
that “‘husband and wife contract toward each other 
obligations of mutual respect, fidelity, and support,” 
which, of course, seems very harmless on its face, and 
probably no one of my hearers will object to this en- 
actment; but possibly, on reflection, a wife may think 
that the old-fashioned marriage, when the obligation 
to support was all on one side, and by which she did 


Codification 409 


not undertake to support a lazy and worthless husband, 
had some advantages which it might be wise to retain. 
Especially if she reads the next section, where it is 
provided that the husband is the head of the family, 
that he may choose any reasonable place or mode of 
living, and that she must conform thereto. So that 
when she consents to place herself within the power of 
a husband, she is not only bound to respect him, 
which may frequently be difficult, but she is in all 
cases bound to support him, not according to her 
notions of what may be reasonable, but according to 
his election and caprice. In other words, he, the 
head of the family, arranges the methods of living 
according to Mis fancy, and to her means. Probably 
not one of the friends of this scheme in the Legislature 
took the pains to consult his wife upon the subject. 
If he did, and he voted for a code containing these 
provisions, possibly she might forget the obligations 
of mutual respect, and fail to remember that he was 
the head of the family. 

If you ask me whether or not this is an original in- 
vention of the codifier, I will tell you that it is not. 
You will find substantially the same language in the 
Code Napoleon, wherein it is provided that ‘‘ married 
people owe to each other fidelity, succor, and assist- 
ance.’ But the French people, being a logical people, 
provide, in addition, that ‘“‘the husband owes pro- 
tection to the wife and the wife obedience to her 
husband,”’ which greatly simplifies the relative rights 
and obligations of the parties. It is also provided in 
the French Code that “‘ the wife is obliged to live with 
her husband and to follow him to every place where 
he may deem it proper to reside.’’ When we add to 
this that the husband administers the fortune of his 


410 Codification 


wife as well as his own, we will find a coherent and 
consistent scheme; but the introduction of such ele- 
ments into our views of such subjects appears to me 
incoherent and absurd. 

As for the children, particularly the boys, who are 
just emerging from the chrysalis condition, I am very 
much afraid that they would become warm advocates 
of the new scheme, for its proviso that “the abuse of 
parental authority is the subject of judicial cognizance 
in a civil action brought by the child or by its relative 
within the third degree, etc., and when the abuse is 
established, the child may be freed from the domina- 
tion of the parent, the parent punished, and the duty 
of support and education enforced.”’ Such provisions 
need no comment. It will be a comfort to the wife, 
however, to know that she can make a will without the 
authority of her husband. Probably her thoughts will 
turn in that direction very frequently after the enact- 
ment of this system of law. 

Pressure of time will not allow me to do more than 
give you these brief samples of the quality and material 
of which this new code is composed; but from what 
precedes you may get some notion of its real character, 
so far as its serious side is concerned. It also has its 
ludicrous feature, of which I will briefly give you one or 
two specimens. 

General Average was the subject of a whole chapter 
in the original plan. The fact that this topic was thus 
honored with a niche to itself in the Temple of the New 
Law would seem to indicate that it was a matter of no 
inconsiderable dignity and importance. It was ac- 
cordingly subjected to a very severe scrutiny by an 
eminent member of the bar, who applied his dissecting 
knife to this particular chapter with especial zeal and 


Codification ALI 


success. After his surgical efforts had been exhausted, 
the dissected members of the chapter were carefully 
collected together, sewed up, and presented in a new 
and—it was supposed—improved form. But, alas! 
the same unsparing knife cruelly resumed its business, 
and there was still less left of the body at the end of the 
second operation than before. Thereupon the learned 
author wisely gave up the business, and left the whole 
chapter out, having concluded that it was not a matter 
of much importance after all! 

But stranger than all, the bill at present consists of 
about two thousand sections, that is, two thousand 
sections that are filled up with matter, while about 
one thousand are blank—these are the least objection- 
able—the reason assigned for this large proportion 
of blank sections being that succeeding Legislatures 
might wish to insert new matter, and this course was 
adopted for their convenience! What the additional 
insertions may be, and how far they may mar the 
beauty of the work as it now stands, and conflict with 
its present enactments, no man can tell. But is it not 
a significant admission of the incompleteness and in- 
sufficiency of the work that one thousand drafts in 
blank should thus be drawn upon the future industry 
of unknown Legislatures to complete a system or scheme 
which in the opinion of its author and admirers is to 
supplant our present laws, and to extract certainty, 
beauty, and symmetry from chaos and confusion! 

Nor should you forget, in considering this subject, 
that the argument to be derived from what I have 
above stated is not only an argument against this 
code, but against codification itself, for the author in 
this case is not a tyro nor a bungler. He is a lawyer 
of great eminence and vast experience, and national— 


412 The Lawyer’s Responsibilities 


I may say international—fame. He has devoted 
many years of his long life to the production of works 
of a similar character, and if he has failed of success, it 
is not rash to say that the task is one of singular diffi- 
culty, 1f not absolute impossibility of performance. 


Before concluding, I may follow precedent so far as 
to lay down a few maxims of a homely and very 
practical character, which may not be without their 
value. They may serve you to combat what Sir 
Thomas Browne calls ‘‘ the vulgar and common errors.”’ 

In the first place, never underrate your adversary. 
Never suppose that he is ignorant of the law and the 
facts of his case, but be certain in advance that he has 
mastered every dangerous point. It may not turn 
out so, but no harm will be done by this precaution. 
As in the art of fencing, your tyro blunderer is often 
your most dangerous foe. He may blunder so much 
and so grievously that he will run you through with his 
rapier or knock you down with his bludgeon while 
you are laughing at his ignorance of true art. 

No case is absolutely certain, and in most instances 
a reasonable settlement will be an economy for your 
client and an advantage for yourself; but if your 
opponent happens to be a woman, then the necessity 
for a settlement is increased tenfold. In such a case 
ordinary prudence demands a compromise. If her 
case is to come before a jury, and her counsel has the 
last word, it is fair to compute her chances to be from 
60 to gs per cent., irrespective of merits. This will 
depend, of course, upon her youth and her personal 
appearance. 

If your case is to be tried before a judge—well, it 
depends upon the judge; but do not flatter yourself 


The Lawyer’s Responsibilities 413 


that because his hair has turned he is less amenable to 
those softening influences which are popularly sup- 
posed to be irresistible with a jury. A snowclad 
volcano is none the less volcanic. 

Do not consider your adversary’s client necessarily 
aknave. If you treat him politely and fairly he may 
become your client, and then you will wonder that you 
could ever have taken so excellent a fellow for any- 
thing but what he really is. 

Above all, keep your temper. Many good cases 
have been lost because counsel was unable to conceal 
or to control his exasperation. No more striking in- 
stance of this can be found than in the case of Mirabeau, 
who was once defendant in person (there was nothing 
singular in that, however), in an action brought by his 
wife for a separation on account of his brutal treat- 
ment. Mirabeau behaved so well on the trial, up to a 
certain point, that he won all the judges. The case 
against him was very weak indeed, and the distinguished 
lawyer opposed to him found that he had but one 
chance of success, and that was, if I may use that ex- 
pression, ‘‘to draw him out.’’ So, in a vehement 
harangue, he turned to Mirabeau and charged him 
with being ‘‘a bad subject, a bad father, a bad son, 
and a bad husband,” whereupon the eloquent and 
fiery tribune broke out into a tirade of most violent 
abuse against the man, whom he called “‘a vile trafficker 
in words.’ He lost his case. 

Do not consider your client a saint because he is 
your client. Never let him say with truth that you 
have made any compromise with right because he 
paid you. He may say so, but let it be certain that he 
speaks falsely when he does. 

Remember that the judge may decide against you 


414 The Lawyer’s Responsibilities 


without being a fool or a knave. Sometimes he could 
not be for you without being one or both. 

Remember that you may be both a lawyer and a 
gentleman; but if you have to choose between the 
two, take the latter. The practice of your profession 
will give you special facilities for showing yourself a 
bully. You will gain distinction by ignoring those 
opportunities under any possible temptation. 

Bear in mind that there is no royal highway to suc- 
cess. You may be a genius, and if you are you will no 
doubt be conscious of it, but that is not enough. 
Others will have to discover the fact, which will take 
time. Meanwhile work—work hard—as though you 
were an ordinary mortal of mere average ability. 
Industry is, in nine cases out of ten, another name for 
genius, and much more reliable. Study the lives of 
our great leaders and see how little they relied on their 
genius, how much on their study and patient labor. 
If you would rival their success imitate their methods. 
Those methods were not their monopoly nor their 
secret, they were and are common property. If you 
would reap the fruit you must be content to sow the 
seed and wait with patience and faith for the harvest 
season. That season will come in its appointed time 
to fill the expectations and reward the patience of the 
toiler. The old curse upon man, that he shall earn 
his bread by the sweat of his face, contains no ex- 
ceptions for us. We may get comfort from the knowl- 
edge that the curse is but a blessing in disguise. 


The heights by great men reached and kept 
Were not obtained by sudden flight; 

But they, while their companions slept, 
Were toiling upward in the night. 








XX 


YOUNG MEN IN POLITICS! 


be encouraged to enter political life depends 

very much upon what is meant by politics. 
It will hardly be denied that the term politician is not 
looked upon with veneration by our people, and that 
most men if called upon to class the individual who is 
labelled with that designation would not define him or 
describe his calling in terms of exaggerated praise. 
Men frequently boast that they are not politicians, 
meaning thereby that they are reputable and useful 
citizens; while the politicians themselves, when they 
take their vocation seriously, assume the airs of states- 
men, regret the obligations and duties under which 
they are placed by a strong sense of public duty, 
and comfort themselves with the reflection that the 
position of a public servant is not without substantial 
advantages. And it cannot be denied that many 
ambitious young men of excellent intentions would be 
willing to take a share in the management of public 
affairs if they were quite sure that they could do so 
without a misalliance with a lower order of men whose 
methods they do not admire, whose companionship 
they object to, and whose speech radically disagrees 


\W HETHER or not our rising young men should 


1 Reprinted from the New York Times, February, 1890. 
415 


416 Young Men in Politics 


with the prejudices created by their own early edu- 
cation. 

But, in truth, wherein do politics and statesmanship 
differ? The objective point and real constitution of 
the two are identical. The conduct of public affairs, 
the filling of public offices with men able and willing to 
carry out a certain line of policy, the triumph of certain 
political principles—these are the objects of the states- 
man as of the politician; and while the former is 
popularly supposed to take broad and comprehensive 
views and the latter to act upon narrow and selfish 
lines, yet is the difference one in degree rather than in 
kind. Many a politician of our own day had, and 
possibly has, in him the very material from which a 
genuine statesman might be carved; many a states- 
man dealing with the concerns of a great nation has 
shown that he was fully versed in and ready to use the 
small arts which the local politician is usually sup- 
posed to claim as his own. When Walpole cynically 
asserted that every man had his price, and then, 
proving his faith by his works, purchased members of 
Parliament with no scruple beyond a due regard for 
the amount paid in each case, wherein did he differ 
from William M. Tweed, the corrupter of legislatures 
and the purchaser of votes? And yet by common con- 
sent all men call Walpole a statesman, while Tweed 
alone claimed that title for himself. It is true that in 
addition to buying and selling others Tweed bought and 
sold himself, but greater statesmen than he have done 
likewise. Even Marlborough did that. If statesman- 
ship and honesty were inseparable, we should have to 
revise our historical judgments. Let not, then, young 
men be misled into injurious abstinence by a dislike of 
the word. The politician is only a statesman looked 


Young Men in Politics 417 


at through the wrong end of the glass. But the pro- 
fession is honorable, and the fact that its members do 
not always come up to the highest standards of moral 
excellence, nor express their views on important topics 
with grammatical accuracy, only makes it the more 
important that an infusion of better ethical and edu- 
cational elements should be injected into the mass, 
and leaven it into proper condition. 

Dismissing this branch of the subject as being 
satisfactorily disposed of, and it being understood that 
by politics is meant the science of practical govern- 
ment as practised by men versed in public affairs, it 
needs no argument to show that the concerns of the 
nation, as of the state or city, should be attended to 
and managed by the best and ablest men in each com- 
munity. Nor in the abstract will any one dispute the 
duty of every good citizen to become at some time or 
other and to some extent an active factor in the work- 
ing of the governmental machinery. Should he begin 
early in life, while his enthusiasms are fervid and his 
faith in himself at least as great as it ever will be, or 
shall he wait until with matured experience and 
broadened views he is able to advise and to lead with 
the assurance that a practical knowledge of men and 
things may give? 

This question is important, but it is not new (Qu. De 
hoc, as the lawyers say, is any question new?). Plutarch 
discussed it very fully eighteen hundred years ago, but 
rather reversed the form of putting it. ‘“‘ Whether an 
aged man ought to meddle in state affairs?’’ he asks, 
and generously answers in the affirmative, but he is 
very careful to hedge about his concession with re- 
strictions that make it imperative on the ‘‘aged man”’ 


not to wait until the frosts of age have incapacitated 
27 


418 Young Men in Politics 


him for useful service. In other words, if he will 
commence early he will be allowed to continue, not- 
withstanding the loss of youth and its concomitant 
advantages. He puts the case so strongly and so well 
that I shall yield the floor to him for one moment, or 
rather adopt his sentiments and language, giving him 
full credit therefor: 


But as for him who should in his old age, and not before, 
begin to meddle with public matters—as they say of Epi- 
menides, that having fallen asleep while he was a young 
man he awakened fifty years after,—and shaking so long 
and close-sticking a repose should thrust himself (being 
unaccustomed and unexercised) into difficult and labori- 
ous employs without having been experienced in civil 
affairs or inured to the conversations of men—such a man 
may perhaps give occasion to one that would reprehend 
him to say with the prophetess Pythia: 


‘““Thou com’st too late.’’ 


Perhaps this warning may not be necessary, as a 
general rule, to our youth— they are rather disposed 
to come too early than too late; but our Greek monitor 
is quite right in his propositions, the one expressed and 
the other implied, viz.: that men should give their 

personal attention to politics while they are young and 
continue to take an active interest in the administra- 
tion of public affairs when they are old. 

But the difficulty arises—the practical one—when is 
the young man old enough to venture upon the arduous 
and responsible cares and duties of public life? Youth 
isarelative term. In this busy, driving, high-pressure 
life of ours, even a bearded chin is not a necessary 
appurtenance or the best evidence of fully-developed 
manhood. And as boys ripen into maturity under 


Young Men in Politics 419 


different circumstances, some retarding and some ac- 
celerating growth, it is not possible to lay down a rule 
that will suit and satisfy all temperaments. The 
younger Pitt would have been presumably a leader in 
his district before he had reached his full physical 
stature. Hamilton dealt fierce blows against Toryism 
while he was in his teens. History is full of examples 
to show that Nature laughs at her own rules and in- 
sists upon her right to puzzle us with her contradictions. 
But there is, nevertheless, a general law, hard to ob- 
serve though easy to lay down, and that is, not to 
undertake the care of others until one is able to take 
care of himself. It is well to learn the theory of poli- 
tics; that is, the principles that are at stake, the 
methods of promoting them, the history of past 
efforts, and the objects of leading men; it is well to 
understand the machinery of politics as engineers do 
the mysteries of a steam engine. All this is eminently 
proper and wise. But the young man who starts upon 
life with the idea of making politics—or call it states- 
manship—a profession and to earn his daily bread by 
public service, unfits himself for all other occupations, 
gambles away his independence, and runs the risk of 
finding himself in the end with the alternative of losing 
his living or forfeiting his self-respect. First, let him 
be his own master—that is to say, able to work his way 
through life by his unaided exertions; then let him 
serve the public. The public can wait. He may not 
think so, but some one will do the needful until he has 
fitted himself to take his trick at the helm and sail the 
ship of state, that stately ship which poets write of 
and so many hands are willing to guide without a 
knowledge of the chart or an insight into the mysteries 
of the compass. 


420 Young Men in Politics 


The temptations and allurements of public life are 
singularly fascinating. To be in the public service is 
the goal and ultimate ambition of thousands who are 
better employed at the desk, or shop, or plough, or 
other honest occupation, be it what it may. I would 
earnestly implore every youth ambitious of honest and 
self-respecting independence to turn away from the 
enchantress, to fill his ears with wax as the Circe seeks 
to lure him to destruction. 

The performance of civic duty is not incompatible 
with a horror of this gilded servitude. Only the man 
of exceptional genius, or the poor deluded victim of 
overweening vanity, thinks that his country needs his 
services in times of peace. The day may come when 
the State, like Diogenes, may go about seeking for 
willing and honest men. But I am not speaking of or 
for that time. In our country of to-day where public 
service is not a profession, where the best and most 
faithful servant can find no certainty of tenure and no 
reward proportioned to his service, let no youth of fair 
prospects abandon the substance for the shadow. The 
millenium may come; the star-eyed goddess may 
beam with her still potential charms on generations 
unborn. If so, this paper will need, and submits in 
advance to, revision. 

I do not mean by this that all young and ambitious 
and intelligent men should not take some share in 
public life. This is something very different. It is 
in the power of all such to insist upon decent political 
methods, upon the nomination of reputable candidates, 
upon wise measures of legislation, upon the subordina- 
tion of personal interests to the public good. All this 
may well be done, and the more effectually done, by 
those who ask no reward from the powers that be, and 


Young Men in Politics 421 


no salary from the public treasury, for being out- 
spoken and brave. 

To this extent all men may be politicians and good 
citizens. To this extent all, rich and poor, should be 
vigilant custodians of the public weal. If, in the 
course of a busy and honorable life, distinctions come, 
let them and their source and their price be carefully 
scanned. Perhaps the bauble may not be worth the 
equivalent demanded or expected; then let it go to the 
others who may prize it more. Perhaps it may be a 
just reward and an honorable opportunity to add a 
mite to our country’s honor and prosperity; perhaps 
a golden opportunity to earn renown, or, better still 
a well-deserved praise, causing some measure of real 
reform to become a reality. No man worthy the 
name needs advice about this. 

But above all and in conclusion, let me say that the 
man who can least afford to be indifferent to the 
claims of politics is the man of wealth. The poor man 
will always, in our system of suffrage, have his advo- 
cates, some because they know that no legislation is 
wise that does not tend to the benefit of the poor; 
some because they are demagogues, and the poor have 
more votes than the rich. But these, the favored ones 
of fortune, must learn their duty, and if they will not 
do that let them learn their peril—for there is peril on 
their horizon. They hold their wealth at the mercy 
of the poor. It seems a paradox, but it is nevertheless 
true, that the millionaire holds his millions because of 
the self-denial of those who have no millions. Who is 
to protect and guard our Dives’ stronghold and strong 
box? The army? You shrug your shoulders, of 
course. The law? Who makes it? The Constitu- 
tion? Who makes that? The ballot? Who owns it? 





422 Young Men in Politics 


But if Dives is wise, forbearing, and gentle in his 
power and his politics, if he so uses that power that it 
is not felt, and so uses his wealth that it is felt as a 
blessing, then Lazarus may forgive, and continue to 
forgive him for being so much happier than himself. 


BR 
AT ENAS 











XXI 


COLUMBIA COLLEGE ! 


permit the most earnest and devoted of 

Columbia’s sons to claim much for her on the 
score of age. Time has not woven its ivy about her 
walls, nor is her record made beautiful by the lghts 
and shadows of poetical tradition. The imagination of 
those who study her history finds little in mere lapse 
of time to arouse enthusiasm or to justify that license 
of laudation which the uncertainties of remote an- 
tiquity make plausible and alluring. 

Columbia has thus far barely passed the age of man; 
there are men now living—there certainly is one man 
living—who may count as many years of life as she. 
The wise and learned Chevreul celebrated his cen- 
tennial a year ago with all the vigor and zest of youth. 
So long as he shall live to taunt us with this coinci- 
dence, we must be content to consider ourselves 
scarcely adolescent, even were we not informed that 
the University of Bologna proposes to celebrate its 
eight hundredth anniversary in 1888. 

But men, as nations, do not always develop by the 
arbitrary standard of numbered years. Nor, as was 


(ter brief period of a single century’s life will not 


1 Oration at the Centennial Celebration of Columbia College, 
April 13, 1887. 


423 


424 Columbia College 


said of Marcellus’ fame, is their glory, like that of the 
tree which grows by the unheeded lapse of time. 
There are periods of history when events long prepared 
burst into sudden life by a single explosion, as certain 
plants that flower at long intervals, passing by no 
perceptible transition from apparent barrenness to the 
height of perfect fruition. Minds mature under the 
influence of political or moral convulsions without 
reference to the ordinary requirements of time. Youth 
steps over the gradations that usually separate it from 
age and its experience, at a bound. 

The end of the last century was one of those seasons 
of intense and feverish activity that spurned the slow 
processes of gradual development. The leaders of the 
world of thought and of action were scarcely out of 
their boyhood. Pitt, at twenty-four, was prime min- 
ister of England, and when the sound of the booming 
guns that announced the victory of Austerlitz struck 
him as though he had received a bullet in his breast, 
he was still in the full vigor of his manhood. Robe- 
spierre’s brief career, so full of mischievous and un- 
bounded power, ended at thirty-six; Napoleon had 
captured fortune and held her a hostage twenty years 
when, at forty-six, his life ended for all purposes except 
to point a conventional moral. Here in America the 
same forces were at work. Men scorned the maturity 
that came by slow degrees. Revolution and war would 
not brook the restraints of time. The natural tendency 
of the human mind to reject authority and to rebel 
against the tyranny of precedent had been strengthened 
and developed by the new agencies which came underits 
command. The press furnished to every new idea and 
to every new scheme of revolution, social, political, and 
religious, the fulcrum that Archimedes longed for in vain. 


Columbia College 425 


The generation of men that stood by Columbia’s 
cradle was fast learning to take nothing upon faith 
and to trust but little to the sanctions of the past. 
Scepticism, as defined and extolled by Buckle, became 
the pervading quality of modern thought. The seeds 
sown by the philosophers and essayists of that period 
soon bore their fruit. Those pioneers in the sphere of 
new moral forces and methods left behind them a legion 
of followers. As we to-day look back at their first 
efforts, we watch with admiration or dismay, as our 
education or taste may prompt, their bold assaults 
upon the bulwarks of ancient opinion. 

The sneer of Voltaire had been so potent for de- 
struction that it now marks one of the transition 
places in history. Hugo, in his delirious admiration 
of the arch-sceptic, has ventured, with blasphemous 
exaggeration, to couple the cynic’s mocking smile with 
the tear that the Divine Master shed upon the creatures 
that He loved and redeemed. The whole social and 
political fabric was to be remodeled for the benefit of 
mankind, and Utopia was to become a reality of 
every-day life. The divine right of kings, so rudely 
assaulted in the person of Charles I., received its death 
blow when Louis XVI., the most amiable of monarchs, 
laid his head upon the block after helping the rebel 
colonies to defeat their own king. Old landmarks were 
torn up before the new ones were found, and the world 
of Europe moved for a season as a ship whose compass 
is taken out for repairs while the helpless pilot, helm in 
hand, waits for the precious counsellor to be returned. 

Then, while men were groping for new lights and 
re-acting against the law of force which had, for a 
season, stayed the destructive current that threatened 
to sweep away the ancient order of established right, 


426 Columbia College 


the new theory of universal knowledge was broached, 
and all the agencies by which the mind could be fed 
and the intellect developed were sought for, tested, and 
adopted with almost feverish haste. Wise men knew, 
and others felt, that the new departure would be a 
mockery if the old methods remained, while the old 
sanctions were gone; states without kings, churches 
without bishops, rulers without power, forms of 
authority without its substance, the right to sneer at 
all things, to disbelieve all things, to advocate all 
things, must be guarded by a new force, and that was 
decided to be Knowledge. 

And thus it was that when Columbia came upon the 
scene she was confronted with new conditions. The 
drowsy and happy life of well-endowed seminaries was 
gone. Caps and gowns and stall-fed dignitaries might 
still exist as pleasing though obsolete symptoms of 
prosperous and scholarly ease, but the life must be a 
new one, and the standard, the test, the result, must 
be of a different complexion. The pale scholar whose 
elegant idleness had been sufficient for himself and for 
his day, must be made of sterner stuff and more 
durable material. Men must be sent out to meet the 
world, the new world: the great harvest was white for 
the reaper, but he must be strong and active and 
brave, for those who had been the last were to be the 
first. All who wanted to be great, thirsted for knowl- 
edge, because they were told that knowledge was 
power, and that the one through the other was within 
the grasp of all. 


Knowledge is Power 


Has not this shibboleth been used so long that pre- 
scription challenges criticism? It has passed from 


Columbia College 427 


generation to generation, from wise fathers to eager 
sons, with the stamp of the real coin and the ring of the 
true metal. Whatever else men have disagreed upon 
in giving worldly counsel to the rising youth, they 
have agreed that knowledge is power; that knowledge 
is the magic wand that points to the concealed treasure ; 
that it gives wings to him who pursues fleeting fortune ; 
strength to the weak; wealth to the poor, and opens 
untold possibilities of greatness to its fortunate pos- 
sessor. Aladdin’s lamp was but a parable of what 
knowledge, once mastered, might do for its possessor. 
The genie that did the bidding of its master was not a 
more obedient slave, nor more potent than the in- 
tangible, indefinable abstraction that we call knowl- 
edge. And yet even now we might venture to ask if 
this be literally, or at all, true. The epigrammatic 
precept bears the superscription of a greater one than 
Cesar; that is the common opinion of men. But do 
all men mean what this really implies? Have wise and 
thoughtful teachers ever intended to convey to those 
who look up to them as counsellors and friends, that 
with knowledge alone, the paths of life were to be 
cleared and the prizes secured? Surely not. For 
mere knowledge of itself and by itself is not power. 
What were Orlando’s sword without Orlando to wield 
it, or Mercury’s wand without Mercury, or Milton’s 
pen without Milton? In truth many, if not most, of 
the great achievements of the world, have been effected 
without knowledge, or with knowledge as a secondary 
adjunct. Charlemagne conquered Europe, and held 
in his rude hand the power of a dozen modern kings. 
It was not knowledge that drove the Saracens in 
bloody rout from Europe, nor knowledge that helped 
the modest maid of Orleans to smite her country’s 


428 Columbia College 


foes with the vigor of a Homeric hero; nor was it 
knowledge that stood by the barbarian leader of Gaul 
or of Germany when he held Rome’s legions at bay; 
nor was it knowledge that made Leonidas and Ther- 
mopyle immortal. It was not knowledge that led 
the early Christians to brave the wild beast in the 
Coliseum, and smilingly to shed their precious blood 
for a testimony to their faith, and yet they conquered 
the world. The rude monk who stirred the nations of 
his day to leave home and friends to fight the infidels, 
had no knowledge that would earn that name to-day, 
and yet the fable of Cadmus and the dragon’s teeth 
was more than realized by him and in his person. 
Knowledge of itself is no more available to achieve 
success than the wire is useful while it awaits the 
electric current that will give it life and with it mock 
at time and space. Of what use is the mammoth 
engine that may do the work of a thousand men, if the 
life is not made to animate the sluggish mass by the 
agency of fuel and steam? The nickle coin that buys 
a loaf, or a newspaper, or a ride, has in it more real 
power than tons of hidden gold that lie concealed in 
the depths of a western mountain. Knowledge, of 
itself, does nothing. It is the man behind it who en- 
ables it to work, and draw, and fight, and write, and 
conquer. How would the knowledge that Columbus 
had have helped the world if the spirit had not leavened 
it and the tenacious will fought its way through the 
obstacles that tried, but never wearied, the brave soul? 
Where did knowledge alone ever penetrate the dark- 
ness of human life, or quicken the pulse, or drive the 
will, or control the passions of men? The medieval 
monk, who prayed and toiled from early dawn, amassed 
a wealth of knowledge that would have enriched the 


Columbia College 429 


world, but what availed it until a man was found to 
catch his words and imprison his thoughts and clothe 
them in type so that they might be echoed and re- 
echoed through the ages? The poet never said, as he 
is daily made to say, that “the pen is mightier than 
the sword,’ but he did say that: 


Beneath the rule of men entirely great, 
The pen is mightier than the sword. 


The mightiest sword of our generation was Grant’s, 
and the mightiest pen was Lincoln’s; the one wrought 
its way to Appomatox and the other wrote the great 
proclamation of freedom. Was it knowledge that did 
all these things, or was it faith, the courage, the man- 
hood, the love of country? With these the man is 
surely great, but without them the learning of all the 
schools will lie inert, useless, like the miser’s treasure, 
great only in wasted potentialities. 

If this be true, if history and our daily experience 
have taught it, then let the lesson of the centuries be 
felt in our life. Let our children know and feel that 
men—not more than armies—are efficient to perform 
their allotted functions, because they have a cumber- 
some mass of impedimenta to accompany them, but 
rather that it is the ability to use the tools that will 
give them the power that they seek. Teach them that 
the man is more than the instrument; that the spirit 
is the real and the best part of the man. Knowledge 
is the whetstone that sharpens the blade, the fire 
that tempers it, the monitor that teaches its use. 
Themistocles might not have been Themistocles if he 
had been born and bred among the Seriphians, but 
a whole colony of Seriphians transplanted into Athens 
and taught in the Portico might never produce a 


430 Columbia College 


Themistocles. The mere man, the homo, is sure to 
follow, for he is made to follow; the vir must lead, for 
he is made to lead, and will lead, whatever his birth, 
or condition, or surroundings. 


Fath 


The great complaint of thinking men to-day is that 
the rising generation, into whose hands the direction 
of public affairs must soon fall, has lost or is losing its 
faith. 

If men have really lost the faith which cemented 
modern society, or if they are in danger of losing it, 
then is the world face to face with a new peril. Even 
those who affect to view the question with philosophi- 
cal indifference, cannot close their eyes to the fact that 
a great void will then be made that something must be 
found to fill. The scornful concession that “religion 
is necessary to the government of the lower classes” 
might have some force and bring with it some comfort 
when the “lower classes”? were willing to continue in 
their debased condition. But where are the lower 
classes in this age and country of ours? Education, 
opportunity, precedent, combine to stimulate the 
great mass of our people to seek for improvement and 
elevation. The time has long gone by when the son 
humbly accepted the father’s place, and, with tradi- 
tional humility, was content to accept transmitted 
servitude. 

Carlyle tells us of the hard-worked peasantry of 
France who beat the ponds at night lest the croaking 
of the frogs should disturb the lord of the manor as he 
rested in his castle, but now the peasant’s son owns the 
castle. The humble soldier was content to fight and 
die unhonored and unknown that the leader who, by 


Columbia College 431 


virtue of his birth, held a prescriptive right to the glory 
which he helped to earn, might gain fresh titles, but 
the rude soldier now carries the marshal’s baton in his 
knapsack; he is himself the ancestor whose brave 
deeds take the place of parchment records. The many 
sowed that the few might reap, and both classes con- 
sidered this a providential arrangement which it would 
be impious to disturb. The hope of compensation in 
a future life satisfied the longings and kept down the 
rebellious spirit. Men were willing to suffer, and 
strong to endure, while they held the belief that their 
tribulations would be exchanged for an infinite reward 
that the language of man was too poor to define or to 
depict. The beatitudes promised him were far beyond 
the immediate and finite blessings that even the richest 
and proudest of his masters could boast, but they were 
real to him, and he rejoiced in them because he saw 
them through the glass of faith. How else, and why 
else, would he have borne the burden of the day and 
the heat, when by the mere raising of his arm he could 
have shattered the whole system? 

God made the stars, says Lacordaire, that men 
might look up. But if men cease to look up, and if 
faith is dying or dead, what ligament has the wit of 
man devised to take its place and to hold society 
together? What CEdipus will solve the riddle? What 
sop will have an answer for every new problem? 
What prophet of the new dispensation will lead men 
captive to the promised land, as Orpheus with his 
magic lyre led the listening oaks that rashly followed 
him? For whatever view we may take of this matter, 
we all know that it is a question that must be met. 
If the alarm sounded from pulpit and press and 
rostra has a true note of warning in it, then the college 


432 Columbia College 


of to-day has to deal and grapple with difficulties that 
can be decided by no precedent. 

A society of men without religion would present a 
new spectacle and must live, if at all, upon some 
principle other than that which has thus far made the 
strong currents of life flow through its members. The 
morality and virtue of modern society are the practical 
forms of Christian teaching, not the arbitrary formulas 
of philosophers, nor the emanations of conventional 
rules. Zeno and Seneca may fill the student’s mind 
with delight, but they have never been practical fac- 
tors in forming the morals of men. Nor has the world 
ever so sorely needed the power and assistance of the 
religious motive and idea, for never before has the 
freedom of individual action and the liberty of opinion 
been so nearly absolute. The day of coerced obedience 
to sacred law has gone by forever. Blasphemy may 
be ranked among the offenses that are retained on the 
statute book, though long since obsolete, but it is, 
nevertheless, as free to preach its doctrine of destruc- 
tion as the teachers of Divine truth to proclaim their 
own. While these discourse at stated times of the 
weighty topics that it is their calling to expound, 
others, equally eloquent, perhaps, and equally earnest, 
denounce these doctrines as the superannuated rem- 
nants of a decayed or imperfect civilization. But the 
spirit of our people will not brook the only remedies 
that past generations could devise to prevent assaults 
upon the faith that was thought as essential to the 
security of the social order as the foundation of the 
building is to the safety of the edifice. 

While men differed as to the form of doctrine, 
and as to the doctrine itself, while they fought for a 
dipthong and shed human blood for a difference in a 


Columbia College 433 


reading, while they were divided among persecutors 
and persecuted, executioners and victims, as though the 
crime of non-conformity to this formulation or that 
were the weightiest that men could perpetrate, there 
was the one common belief in the Higher Power. Men 
were cruel because they were earnest, and they suffered 
because they were convinced. 

Faith of some kind was the mainspring of society 
from the time that ancient Rome fell to pieces because 
her faith, false and hollow as it was, had gone. IH, 
perchance, isolated instances of rebellion against the 
general belief showed themselves, the strong arm of 
temporal power dealt swiftly and surely with the 
enemy of society. Not the policy and teachings of 
Church and State alone combined to guard the sacred 
temple from desecration, but the common opinion of 
men joined the two and made them irresistible. When 
kings founded their claim upon a divine right, the 
traitor was guilty of a double crime, and no penalty 
could be too cruel to punish him and to deter others 
from like violations. To raise one’s hand against 
God’s anointed, was the extreme point which the de- 
pravity of man could reach, and was, therefore, de 
fined and treated as the embodiment of all crimes. 

And then, too, the very manifestations of nature, in 
which the Creator showed His power, reinforced the 
natural obedience of men to the Divine law. The 
lesson of the earthquake, of the comet, of the cyclone, 
or the eclipse, came upon them as the direct emanation 
of God’s wrath, or the living proof of His warning. 
Horace was not the only one who turned from his care- 
less and infrequent devotions to more pious practices 
when Jove suddenly and without warning clouds drove 
his thundering horses and swift chariot through the 

28 


434 Columbia College 


clear vault of heaven. Perhaps the ease- and pleasure- 
loving poet was not so ready a victim to the terror 
which he describes as he affects, but if he was not, 
others were, long after the pagan temples had lost their 
honor. Great convulsions were always followed by 
redoubled zeal, and no sermon that was ever preached 
by human lips reached the hearts and stimulated the 
devout terrors of men as the tidal wave that swept 
away twenty thousand human beings in the twinkling 
of an eye. But Horace would not now leave his 
Falernian, nor the pleasant banks of the cool stream 
that he loved, because of a comet, or an eclipse, or even 
an earthquake, unless the rumbling menace were near 
enough to reach his ears; none of these heavenly por- 
tents would interrupt the ode to Lydia or to Glycera. 
The preacher now knows, and the hearer knows, that 
the phenomena which were looked on as threats of 
coming catastrophe, are the obedient movements of 
the slaves to a great law. 

All this touches us more nearly than any other com- 
munity. No schoolboy need be told that in our 
republic the government, belonging as it does to num- 
bers, must be based upon the best qualities of men; 
that no society can count upon the future which, by 
its very nature, rests upon the caprice of ignorant, 
vicious, and accidental rulers. The grave experiment 
of subjecting the fortunes and existence of a nation of 
one hundred millions to the probability that the 
majority will be fit to rule itself and the minority, 1s 
soon to be made. We all cry out that by education 
alone may we solve the difficulties and problems that 
beset us. Even Montesquieu understood this more 
than a century ago: “The republican form of govern- 
ment,” he says, ‘is one that peculiarly needs the 


Columbia College 435 


power of education. Fear in despotic governments is 
born of threats and punishments, but political virtue 
requires renunciation of itself, which is always a painful 
act.” What is the education best adapted to do this? 
How shall the generation that is pushing forward to 
seize the helm and control the ship be taught to per- 
form its duties? Once, within a quarter of a century, 
that ship was sorely beset. The lover of his country 
might well grow pale and cry out with patriotic 
anguish: O navts, referent in mare te novi Fluctus! O 
quid agis? For her masts were broken by the storm, 
and her main-yards groaned, and her keel could scarcely 
support the impetuosity of the waters. The peril is 
different now, and still remote. The great questions 
that follow large accumulations of wealth, class differ- 
ences, real grievances as well as fancied wrongs, the 
multiform varieties of the struggle for life, must be 
met, and with one, the only, panacea—education. 
If it be really education; if it be that which draws out 
all that is good in men, and smothers what is bad, our 
panacea will do its work, and we need fear noevil. Let 
us have a care lest we, too, be forced to exclaim, as 
the poet just quoted: 


Non Di quos iterum pressa voces malo. 


Sore pressed with evil, you have no Gods whom you 
may again invoke. 


The University 


These reflections naturally lead us to consider the 
question of the American university—a living, practical 
one, full of momentous meaning for the future of our 
country. 


436 Columbia College 


I shall hardly undertake to define in a paragraph 
the university that is, or ought to be, the ideal of our 
day and generation. 

The eminent orator and scholar who made Harvard’s 
recent celebration memorable, asked the question, 
“What is a university?’’ and answered it by quoting 
himself as having said thirty years before that, “A 
university is a place where nothing useful is taught, 
but a university is possible only where a man may get 
his livelihood by digging Sanskrit roots.” 

I am not unconscious of the boldness that might be 
imputed to me should I attempt to criticise this 
epigrammatic expression of opinion from one of the 
leaders of our intellectual world, but I do not hesitate 
to say, that if the university of the future is to be an 
asylum for incapables, or a home for sophists, or a 
shelter for unprofitable servants, the sooner the truth 
is ascertained the better it will be for our people. 

Even so respectable an occupation as the study of 
Sanskrit roots will never suffice to make the university 
a real institution in America, if its main objective point 
is the inculcation of useless knowledge. Whether 
knowledge can ever be useless might here be ques- 
tioned, but I assume that the meaning intended is, 
that no learning of the practical, active, and vigorous 
order is to be admitted within the portals of this ideal 
establishment. 

If I could venture to give a definition of my own, I 
should, on the contrary, proclaim that the true univer- 
sity is that which teaches nothing that is useless, and 
everything that is useful and good. That its aim 
should be to form a class of men who, by their training, 
moral and intellectual, would be the model men of the 
country, in the government of which they might be 


Columbia College 437 


expected to take a large and useful part. I would be 
bold enough to say, that the real university should 
concern itself in ripening useful talents, in eliminating 
useless and idle theories. Law, medicine, theology, 
literature—surely all these things, in all their branches 
and off-shoots, form useful subjects to the student. 
To elevate the standard of all the professions; to 
purify the taste and ennoble the pursuits of study- 
loving men; to arm these with the weapons, offensive 
and defensive, which experience has proved to be 
available in the battle of public or private life—these 
are aims which may well encourage the founders of 
our ideal university. 

The college of yesterday, and the high-school that 
preceded it, have and must have their mission, but an 
ever-broadening field opens before us with increasing 
responsibilities and possibilities. 

I know of no people who were ever yet successfully 
governed without a class of men, by birth, or training, 
or education, better fitted than other men to assume 
and perform the functions of government. Whether 
it be an army, or clergy, or nobility, or a free press, or 
a fearless bar, or a learned and honest bench, there 
must be somewhere a reserved corps of men willing, 
ready, and able to make, administer, and enforce the 
laws. No monarch ever felt secure without such co- 
adjutors to sustain, none ever felt safe with such to 
oppose his power. The Pretorian Cohorts made and 
unmade emperors at their will, because they repre- 
sented the dominant idea of force, incarnated in them- 
selves, and used it as they would. When morals were 
at their lowest ebb, the populace, with no guide but 
its caprice, raised and tore down the purpled puppets 
who gave or refused the panem et circenses that it 


438 Columbia College 


clamored for and refused to clamor for in vain. In 
England, the barons, and the vassals held by them in 
their marvellous system of feudalism, furnished the 
stay and support which kingly power required. And 
as increasing civilization modified this state of things, 
the reign of the sword was mitigated by the advent of 
the intellectual element, and they became great who 
could sway the multitude by their voice or by their 
pen. 

The efforts of such men became concentrated into a 
focus and a parliament arose, which, though obedient at 
times to a strong will, soon learned its power, increased 
it, and kept it, and now holds within its grasp abso- 
lute omnipotence, bounded only by its own self-denial. 
France, even in the gorgeous period of Louis XIV., 
was led by a brilliant aristocracy of soldiers and a 
growing class of writers who spread their empire slowly 
but surely until they, too, made and unmade king- 
doms. And if the great Napoleon fell in a day, and 
was swept to a barren rock to die, was it not because 
the only chosen body that he had to sustain him went 
down with him at Waterloo, while the intellectual force 
of the age was his foe? 

Where, then, in America shall we find that class of 
leaders to whom the thinking and working mass of our 
people may look with confidence and just expectation? 
Aristocracy, in its old and conventional sense, con- 
veys but an empty and meaningless sound—yet 1s it 
not of the very essence of democracy that the best 
men should stand at the front as the guides and chosen 
leaders of the people? Political questions of great 
moment cannot be decided by public clamor in a 
market-place. The rule of the people means that the 
people shall choose its own instruments to do the work 


Columbia College 439 


of governing; the quality of that work shall depend 
upon the temper and quality of those instruments. 
From corrupt and polluted sources no good may come; 
nor can sweet and bitter water flow from the same 
orifice. These chosen men must be strong and brave 
and wise. If education be the only means by which 
the best that is in men may be educed, then should it 
be the crowning glory of our ideal university so to deal 
with those who enter its doors that they shall leave, 
full-armed and equipped, strong in faith and in hope, 
self-reliant, not filled with doubts and armed with 
negations, but positive, large, healthy-minded men. 
We have our schools of law, of medicine, of theology, of 
science; shall we not have the culmination of the 
school system from which shall emerge the man—full, 
rounded, and complete? 

The idea is not a new one. Plato discussed the 
subject many centuries ago. ‘‘Is your meaning,’ 
asks Protagoras of Socrates, “that you teach the art 
of politics, and that you promise to make men good 
citizens?”’ 

“That, Socrates, is exactly the profession which I 
make.”’ 

“Then,” I said, “you do, indeed, profess a noble 
ateal 

It may be unnecessary to add that Socrates and 
Protagoras were not speaking of that science which is 
popularly known as “practical” politics, and which 
has other objective points than the making of good 
citizens. 

Athletics 

The new departure in athletics deserves a word of 
commendation and of caution. The exploits of our 
Columbians in this field of college education need not 


440 Columbia College 


be here rehearsed, but it may be said, without undue 
exultation, that they have proved that urbanity and 
physical development are not inconsistent. A man 
may be a gentleman and win prizes, even at football, 
although I fancy that the test is as severe as human 
nature can endure. The time was when a youth was 
noble who could fling the discus beyond the line, and 
it was a bad omen for his manhood when he gave 
up the exercises without which that manhood was 
incomplete. 


Neque jam livida gestat armis 
Brachia, Sepe disco, 
Se@pe trans finem jaculo nobilis expedito. 


There is a classical flavor about these manly exer- 
cises that detracts nothing from their excellence. A 
sound body and a sound mind are the true watchwords 
of real training: the gymnasium that cared for the 
body and the mind was the true ideal of an educa- 
tional seminary. But is there not a danger that the 
subdivision of labor, which is at the bottom of modern 
progress, may be carried to undue length in the dis- 
tribution of college duties? The sound body and the 
sound mind should be united in the same person; not 
divided among several. A trained corps of athletes 
would hardly reward the college that produced them, 
if the abnormal development of the biceps or thoracic 
muscles had been gained at the expense of other ac- 
quisitions. The doctrine of averages would not com- 
fort us if the physical excellence were all on one side 
and the mental superiority on the other. Is there no 
danger that emulation and an honorable anxiety to 
uphold the college standard may lead to that result? 
Whether it be so or not, time will determine; mean- 


Columbia College AAI 


while we shall exult in the honorable victories and 
honorable defeats which the future may have in store 
for us. Cato Maior puts a question which the young 
athlete would answer, I think, with no hesitation, but 
not as that old and self-satisfied philosopher would 
have liked: ‘Milo is said to have gone around the 
Olympic course carrying an ox on his back; which 
would you prefer, to have this strength of body, or to 
be gifted with the intellectual powers of Pythagoras?”’ 
Where would Pythagoras stand on a show of hands? 
Even a respectable minority would be a triumph which 
the father of metempsychosis could hardly expect to 
secure. 

But the bodily strength of Milo and the intellectual 
vigor of Pythagoras need not be rival candidates for 
supremacy; rather let the harmonious development 
of both, growing in close sympathy and mutual sup- 
port, ripen into the best fruit which the highest culture 
may produce. 

When, as Milton expressed it, Athens was the eye 
of Greece, and when Greece was the leader, model, 
teacher of the world, athletic exercises were not the 
sports of idle men, nor the resource of those who sought 
to make up in physical prowess what they lacked in 
mental attainments. But the noblest and the best 
devoted themselves to those pursuits and strove for 
the glorious palm of victory. Poets, philosophers, 
and orators labored to win the crown at the national 
games. Plato himself did not scorn, it is said, to enter 
the arena as a candidate for the honors there to be 
earned. 

Pindar’s grandest odes celebrate the triumphs to be 
won in these contests for supremacy, triumphs which 
appealed alike to the admiration and the envy of all. 


442 Columbia College 


Far above the ordinary pursuits of the citizen, far 
beyond the other prizes which might make immortal 
renown, was the glory of the victor at the Isthmian 
and Olympic games. 

The tame pursuits which bring in daily bread and 
homely comfort were no fit subject for the poet whose 
imagination had been kindled by the fire of these 
themes. 


The various rewards proposed for their works, are pleas- 
ing to various men [says Pindar]; both to the shepherd 
and to the ploughman, and to the fowler, and to him unto 
whom the sea gives support, and each one exerts himself 
to ward off direful hunger from his stomach. But he who, 
in games or in battle bears off beauteous glory, receives, 
by being praised, the highest gain, the choicest speech of 
citizens and strangers. 


This will seem a poetical extravagance of speech in 
our day and generation, but the glowing language of 
these immortal writers will show that contempt of the 
body, which has too long characterized the scholar, 
finds no warrant in the teachings of men who were 
giants in their days and who are giants still. 


Electives and the Classics 


Who shall rule our colleges is a question that agitates 
the student mind to no small extent, and leaves the 
higher authorities not wholly undisturbed. That the 
imperative mood must be sparingly used is becoming 
a canon of well-settled college discipline; whether, and 
how far, occasional recourse to that mood in a softened 
and mitigated form may be had, is still debated, 
chiefly outside of Columbia. 

Those who have read Cicero De Senectute, and have 


Columbia College 443 


learned from him that the seniors, or older men, were 
the ones who preserved and maintained the integrity 
of states against the rash and reckless attacks of the 
juniors, will not readily concede that the choice of in- 
tellectual food should be left to those who have the 
least knowledge on the subject; especially to those 
who are actuated by the most universal of nature’s 
instincts, the desire to shorten the hours and mitigate 
the asperities of a day’s work. Temeritas est videlicet 
florentis etatis, prudentia senescentis. How long will 
this prudence of old age withstand the attacks of rash 
and vigorous youth? Has not the white flag of sur- 
render already shown itself on the citadel? If the act 
of abdication is not already signed, the bill of rights 
and the Magna Charta have been delivered, and the 
oppressed youth of our sister institutions, at least, 
are near their enfranchisement, and free to play the 
dangerous game of liberty. 

Yet it may be urged without intending offence to the 
growing citizen, that a deep-seated and genuine re- 
luctance to study Greek, assuming it to exist, does not 
necessarily imply genius in any other direction. A 
student may honestly feel that Melpomene never pre- 
sided at his birth, and that he was intended for other 
victories than those which devotion to the Muses may 
secure, and yet be unable to select with judgment the 
pursuit for which he is best adapted. This has prob- 
ably been the cry since the alphabet was taught. 
Vocations to do are rare, but vocations not to do are 
common. True genius sends its arrow to the mark 
with an unerring instinct which painstaking mediocrity 
may never emulate, but it cannot expect to make its 
rules for the general government of mankind. The law 
of averages fixes in advance the number of marriages, 


444 Columbia College 


except, according to Buckle, when disturbed by fluc- 
tuations in the corn market; so it does the number of 
suicides and misdirected letters; may that law not gov- 
ern us wisely in matters connected with education? 

The experience of years—nay, of centuries—may 
not be disregarded or set aside in subservience to new 
theories, the value of which is still unproven. How to 
discipline the mind of youth and give it the proper 
food, is not a matter to be abandoned to chance, nor 
decided upon any other than well-considered grounds. 
The kind father will not give a stone to the child 
who asks for bread, but neither will he give him a 
stone when he asks for a stone instead of bread, nor 
will he let him dictate the material of which the 
bread—whether to feed his body or his soul—shall 
be compounded. 

It may be that in the curriculum of our modern 
colleges, too much attention is devoted to a particular 
study, and that in the whirl of our constantly increas- 
ing activities we might, with profit, cling with less 
tenacity to old traditions. It may be that the Greek 
and Latin languages, and literature, and mathematics 
should be jettisoned in order that the rest of the cargo 
may be saved; but will the residue be worth the 
saving? Volumes have been written on either side of 
this question—which, I fancy, would never have 
reached the dignity of a question had not the over- 
loaded college curriculum, groaning, creaking, and 
strained, cried loudly for relief. 

Heretofore, familiarity with the models of ancient 
learning, literature, and eloquence was the crowning 
excellence of a generous education. No orator, poet, 
or historian could expect to scale his Olympus who 
had not been inspired by the ever-potent voice of 


Columbia College A45 


Athens and of Rome. Each man was great as he 
approached and resembled the masters who were as 
secure in their supremacy as the statue of the Grecian 
Venus in the Louvre. There she stands and smiles 
her defiance after all the centuries, challenging the 
world to match her in her mutilated beauty—a land- 
mark, as it were, on the very verge of human per- 
fection, fixing the limits beyond which the genius of 
man has never gone and may never go. Huc usque 
venies—‘‘Thus far and no farther shalt thou come’’— 
she seems to say. 

The deepest thinkers and the wisest men—leaders 
of thought and of action—deemed the time well em- 
ployed which they gave to the contemplation of these 
masterpieces. In the beauty of their conceptions, in 
the chastity of their style, in the art which marked 
their productions, written or spoken, the inspiration 
of these models was to be traced. The noblest periods 
that ever shook the halls of Westminster were the 
echoes of the hushed yet living voices of antiquity; 
they came from patriots and scholars who with be- 
coming gratitude acknowledged the greatness of the 
obligation. So it has been in our own day and with 
our own leaders. Our most honored magistrates and 
most eloquent advocates have drawn freely from these 
fountains. The Erskine of America, Rufus Choate, 
like the Erskine of England, exulted in the possession 
of the treasures that he had discovered while seeking 
the fountains of learning and art. Webster, the mas- 
ter of our masters, in his matchless oratory, blessed 
and thanked the Alma Mater that had conducted him 
to the glorious land whence he had come back laden 
with untold wealth. At all times, in all countries, 
where the charms and refining influence of scholarly 


446 Columbia College 


pursuits have been prized as they deserved to be, these 
noble studies expanded, enriched, and delighted the 
minds that were capable of feeling their spell. Their 
creative power and influence are as clearly traceable in 
the intellectual productions of modern times as the in- 
fluence of Greek art in the architecture and sculpture 
of the centuries that have followed the fall of Athens. 
No statute of limitations can bar the operation of such 
influences; true genius works for no time or country, 
but with marvellous reproduction recreates itself for 
the benefit of all ages and all men. 


Early History of the College 


The history of the college, I have said, lacks those 
elements of poetry which are born of twilight and 
imagination. 

The inscription on the first stone laid by King’s 
College—the first in the province of New York—hbears 
the xecent date of 1755.) The’ college 1s only some 
twenty years older than the nation. Its beginnings 
were humble—the times were stormy—and funds were 
scant. 

The first president of record was the Rev. Dr. 
Samuel Johnson, who left his quiet home at Stratford 
to take the presidency of the new college, and to re- 
ceive therefor the not very munificent salary of £250 
per annum. We may infer from this that he was not 
actuated by mercenary motives, even when we couple 
the actual stipend proposed and accepted with the 
suggestion made by the trustees that the vestry of 
Trinity Church might thereafter make a reasonable 
addition to the sum named. 

The most conspicuous service rendered by the 


Columbia College 447 


learned doctor appears to have been to devise the 
college seal, the principal feature of which embodies a 
prophetic vision of the future, for he pictures a lady 
sitting on a throne, or chair, with several children at 
her knees, to represent the pupils. It is to the credit 
of Columbia that not only in this allegorical form does 
she recognize the true function of woman in the cause 
of education, but that she has practically entered upon 
the duty of fitting woman for the quality of teacher 
by first permitting her to be a pupil. 

The learned doctor’s labors were considerably inter- 
fered with, and his peace of mind disturbed by a great 
and no doubt fully justified apprehension of the small- 
pox, for in November of 1757 he fled to the County of 
Westchester, where he remained about a year, to allow 
that dreadful scourge to disappear, and in ’59 he was 
again compelled to fly and remain absent six months. 
But as others continued in charge of the college its 
quiet pursuits were uninterrupted, and in 1758 the 
first commencement was held at which the degree of 
Bachelor of Arts was conferred on eight students. 
Three of these had been educated at Philadelphia, or 
at Princeton, but desired, apparently, to start in the 
world with the éclat of a diploma from King’s College. 
Only two young gentlemen were admitted to the de- 
gree of Bachelor or Arts in the following year; one of 
whom had already received at Princeton such educa- 
tion as that college at that time could bestow; the 
other being the only one out of six admitted in ’55 
who had persevered to the end. The minute care with 
which the college, even then, interested itself in its 
growing children is manifested by the very frank ex- 
pressions which are found in the matricula of the 
college respecting those who entered the Freshman 


448 Columbia College 


class of that year (’55).. One of them appears, from 
these notes, in the third year to have gone to Phila- 
delphia College, presumably because the standard of 
King’s College was too high, or the application required 
too severe. Another, made of sterner stuff, about the 
middle of the second year went into the army; an- 
other, after the third year, considering, no doubt, that 
he had acquired all the knowledge that commercial 
pursuits demanded, went to merchandise; of the 
fourth, it is said that after about two years he went 
to privateering—as it were, a special course of com- 
mercial training; and of the fifth, it is said that after 
three years, he went to nothing. 

But neither the smallpox, nor a lack of students, 
nor scarcity of funds, interfered with the growing 
academy. At all times, and from the very beginning, 
its aims were of the highest, and it does not seem to 
be an exaggeration to state here that to-day, in its full 
development and in the fruition of its efforts and 
labors, Columbia College has simply carried out the 
promises of its early founders. 

It may be observed that one of the advantages in- 
cident upon the late birth of this institution has been 
to free it from the trammels and embarrassments 
which its predecessors have had to contend against. 
There was nothing in the charter requiring Columbia 
to exert itself in behalf of the Indians, nor to support 
a learned corps of missionaries to reclaim them from 
their hopelessly wild and dissolute habits. 

It is a striking commentary upon the ready re- 
sponse that King’s College found in the City of New 
York, that some of the most distinguished men of the 
revolutionary period were then among its students. 
The freshman class of 1762 was composed of John 


Columbia College 449 


Jay, Egbert Benson, Robert R. Livingston and many 
other men whose record is a part of our history. 

It did seem, at one time, as though Fortune had 
removed the bandage from her eyes and intended to 
smile upon the deserving and struggling college. A 
grant of 24,000 acres of land was made, but as it turned 
out to be in debatable territory, which the State of 
New York abandoned to Vermont for the sum of 
$30,000, which sum the State retained, no benefit ever 
accrued from this apparently munificent donation. 

Dr. Johnson’s successor, the Rev. Dr. Cooper, was 
destined to undergo even more serious tribulations 
than those encountered by his predecessor. Although 
we do not hear that he was driven abroad by small- 
pox, it is certain that the even tenor of his life was 
greatly disturbed by the premonitory symptoms of 
the explosion of 1776. His proclivities were, naturally 
enough, in favor of the British Government, and it is 
said that in a literary skirmish between himself and 
an anonymous adversary he was badly worsted, which 
no one will wonder at who is informed that the pen of 
that adversary was held by Alexander Hamilton, then 
a student in one of the younger classes. Napoleon is 
reported to have sought to comfort an Austrian officer 
who bitterly bewailed his fate, after the French victory 
of Austerlitz, by saying: “ Young man, you need not 
be mortified at being defeated by me’”’; and we will 
think none the less of the learned doctor because his 
steel was not equal to that of the boy-champion in the 
cause of liberty. 

But if it was natural that Dr. Cooper should main- 
tain and express his feelings of loyalty to the crown, 
it was equally natural and to be expected that the 
expression of those feelings should be viewed with 


A50 Columbia College 


much resentment by those about him. Only one year 
before the Declaration of Independence was signed, a 
letter was addressed to him and a few other obnoxious 
but probably very harmless gentlemen, ascribing to 
them all the desolation which was in part then felt and 
in part anticipated by the residents of New York. 
This letter, fortunately, closed with good advice, and 
still more fortunately, the doctor was wise enough to 
follow it: ‘“‘ Fly for your lives, or anticipate your doom 
by becoming your own executioners.’’ Signed, ‘‘ Three 
Millions.”” The doctor, availing himself of the choice 
thus generously left him by the signer or signers of 
this letter, adopted the first alternative, and escaped in 
the dead of night, only half dressed, over the college 
fence: 

After adventures, or misadventures, which it is not 
my purpose to relate, he succeeded in reaching his 
native country, where he spent the remainder of his 
life among staunch and sturdy loyalists, far from the 
threats and execration of unreasonable rebels. 

The college was forcibly seized in 1776, and the 
record of that year shows that the confusion which 
prevailed in every part of the country effectually sup- 
pressed every literary pursuit. 

In 1784, the legislature of New York granted cer- 
tain privileges to the theretofore called King’s College, 
and three years later the act was passed under which 
it received its new life and under whose beneficent in- 
fluence it has since pursued its prosperous career. 

In 1820, the college possessed the inestimable priv- 
ilege of seeing most of her offices filled by her own 
children; Professors M’Vickar, Moore, Anthon, and 
Renwick. were all reared by her; their names are 
household words, and the history of the college from 


Columbia College 451 


that day forward is one of unbroken progress. What 
she has done, where she stands, and what success she 
has met with, we all know. The twenty-four students 
who constituted the number within her walls when Dr. 
Johnson left have now expanded to sixteen hundred. 

In every walk of life her graduates have done their 
state and country honor. From the time when John 
Jay, Alexander Hamilton, and DeWitt Clinton oc- 
cupied the highest positions in the councils of the 
nation, on the bench, or in the senate, her children 
have been conspicuous in the government of our 
country, state, and city. The record of illustrious 
names to which she can point would be as long and as 
tedious as Homer’s catalogue of the ships that carried 
the Greeks to Troy. An alumnus was mayor of New 
York one hundred years ago, another is mayor to-day. 
The chief adviser of the city, the attorney for the 
people, the president of the Board of Aldermen, judges 
on the bench, members of the Legislature and of Con- 
gress, in all positions of life we find them, honored and 
respected public servants. If the tree may be known 
by its fruits, then may Columbia feel proud of her 
nobility, of her service in the past, of her promise of 
future usefulness. 

And why should she not be a leader among the first? 
Born and raised in the Imperial City of the continent, 
she has grown with its growth, and flourished with its 
prosperity. With the vivifying influence of a vast 
and active population to keep her from stagnating into 
decorous ease, with the growing affluence which re- 
quires corresponding culture, with a generous emula- 
tion to outstrip her brilliant and friendly rivals, why 
should not Columbia justify the best aspirations of her 
founders? There is no limit to her possibilities of 


452 Columbia College 


good, provided she may ever count upon the loyal and 
loving adherence of her children. If that does not fail 
her, the measure of her prosperity will be filled. The 
hardening processes of our modern life, the heat of 
competition in the arduous struggle for existence, are 
apt to deaden sentiment by repressing its manifesta- 
tions. But as no man need blush because his heart 
beats high and his speech grows warm for his country, 
his home, or his faith, so need he never blush because 
a tender chord binds him to the mother that made 
him what he is. True sentiment is not weakness; it 
is strength. It makes fragrant the commonplaces of 
life; it throws a purple mantle over the humblest oc- 
cupation, and keeps alive the sacred fires in the temple 
of pure and genuine manhood. 


THE END 





Ce Sa Na ee 
Mugg a 





eur i eu ii 


nD akan ab ah ih) 


ae PS dee a) 


a 














UNIVERSITY OF CALIFORNIA LIBRARY 
BERKELEY 


Return to desk from which borrowed. 
This book is DUE on the last date stamped below. 


{ANanl4ZQRD 
14V6C 48AP 





LD 21-100m-9,’47 (A5702s16) 476 


a. — 
eae aN 
Na 


~ YD O1CO7 





= 


= 


seen 


+P) 
Hy 


i 
Hh 
(NE 


im 

fast! 

SSH 
Arab 
*) if 


nh 
Why 
nh 


SS 


Me 
i? 
My 
ri 
4 


Somes 


eas 
Sree 


See 


Sse 


i, 
V4 
1 

i 


i 


i) 


Hal 
rant 
h I Hh 
, 





